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2015 DIGILAW 558 (CAL)

Parimal Kumar Bose v. Union of India

2015-07-07

JOYMALYA BAGCHI, MANJULA CHELLUR

body2015
JUDGMENT : The appeal is directed against the judgment and order dated June 04, 2014 passed by the learned Single Judge in W.P. 12192 (W) of 2014 with W.P. 25136 (W) of 2007 challenging the applicability of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as "the said Act of 1952"). 2. The appellant, running a clinical establishment named as "The Cure Nursing Home", had instituted the first writ petition, being W.P. 25136 (W) of 2007. No interim order was passed therein. During pendency of the said writ petition, the Authority passed an order dated October 15, 2007, determining the applicability of the said Act to the appellant's establishment and holding that the appellant is liable to pay Rs. 9,71,910/- as the amount due and payable as provident fund dues under the said Act of 1952. Such order passed under Section 7A of the said Act of 1952 has been assailed in the second writ petition, being W.P. 12192 (W) of 2014. Both the matters were disposed of by the impugned judgment and order dated June 04, 2014, whereby the learned Single Judge directed that the appellant shall deposit a sum of Rs. 4 lakhs to the Assistant Provident Fund Commissioner and in the event such deposit is made, the Assistant Provident Fund Commissioner and the Assessing Officer shall reconsider the issue relating to the strength of the employees and shall pass fresh order after giving a reasonable opportunity of hearing to the petitioner within a period of twelve weeks from the date of such deposit. 3. Mr. Achyut Basu, learned Counsel appearing for the appellant strenuously argues that the establishment of the appellant is a nursing home and not a hospital and, therefore, the provisions of the said Act of 1952 are not applicable to it. He further submits that there is no uncontrovertible material on record to show that the number of employees employed is below 20 and, therefore, the said Act is inapplicable to the establishment. 4. Mr. He further submits that there is no uncontrovertible material on record to show that the number of employees employed is below 20 and, therefore, the said Act is inapplicable to the establishment. 4. Mr. Mihir Kundu, learned Counsel appearing for the Provident Fund Authorities submits that in view of the G.S.R. 1082 dated September 15, 1973 every establishment known as hospital has been brought under the protective umbrella of the said Act and, therefore, an establishment which is a hospital for all practical purposes cannot be held exempted therefrom merely because it is described as nursing home in common parlance or under any other statute. He further submits that the issue, as to the number of employees, was correctly determined by the Authorities and the same has been remanded for fresh consideration on proper factual inquiry by the learned Single Judge and, therefore, the impugned order does not call for any interference. 5. Mr. Basu drew our attention to the definition of the word 'Nursing Home' under Section 2(d) of the West Bengal Clinical Establishment Act, 1950, wherein a medical institution receiving and treating patients below 25 in number has been held to be a nursing home. He also relied on number of authorities in support of the contention that if the number of employees is 20, then the concerned establishment does not fall within the ambit of the said Act. Mr. Basu further drew our attention to G.S.R. 1082 dated September 15, 1973 which reads as under :- "G.S.R. 1082 - In exercise of the powers conferred by Clause (b) of sub-section (3) of Section 1 of the Employees' Provident Fund and Family Pension Fund Act, 1952 (19 of 1952), the Central Government hereby specifies every establishment known as hospital run by any individual association or institution (other than the establishment covered by Clause (vi) of the notification of the Government of India in the late Department of Social Security No. G.S.R. 1398 dated the 17th September, 1964) as the establishment to which the said Act shall apply with effect from the 31st August, 1973." 6. A perusal of the said notification would show that applicability of the Act has been extended to "every establishment known as hospital". 7. It has been strenuously argued before us that the concerned establishment is described as a nursing home and not a hospital. A perusal of the said notification would show that applicability of the Act has been extended to "every establishment known as hospital". 7. It has been strenuously argued before us that the concerned establishment is described as a nursing home and not a hospital. It has also been argued, in view of The West Bengal Clinical Establishment Rules, 2003 the word "hospital" can only be inserted in nomenclature of a clinical establishment having not less than 25 beds where treatment facilities in all the disciplines or a particular discipline are sufficiently available with necessary infrastructure of any type of emergency management during day and night. 8. Admittedly, in the instant case the establishment did not have such capacity and, therefore, fall within the ambit of nursing home. 9. We are unable to accede the contention of the appellant inasmuch as we are of the opinion that expression 'hospital' in the aforesaid notification has to be read in a generic sense and not in view of the definition given in another statute. It is trite law that definition given in another statute cannot be incorporated in another, more so when there is no provision in the later statute expressing any intention with regard thereto. Furthermore, the Act is a beneficial legislation and operates in a different field than that of the West Bengal Clinical Establishment Act, 1950. Hence, we are unable to accede to the submission of Mr. Basu that the definition of nursing home under the West Bengal Clinical Establishment Act, 1950 would be a guiding factor to interpret the notification G.S.R. 1082 dated September 15, 1973. Furthermore, we are not in agreement with the reasons recorded by the learned Single Judge that the definition of the word 'hospital' relates to an institution where sick or injured persons receive medical treatment. Treatment of the sick is the core parameter on the basis of which the aforesaid notification is to be interpreted and not the number of beds, which are available therein. 10. Accordingly, we are of the opinion that both the establishments are described as nursing home in common parlance. A nursing home is a hospital for all practical purposes and for the purposes of the aforesaid notification. The beneficial impact of the act cannot be ignored and interpretation of any notification under the same given merit thereto. 10. Accordingly, we are of the opinion that both the establishments are described as nursing home in common parlance. A nursing home is a hospital for all practical purposes and for the purposes of the aforesaid notification. The beneficial impact of the act cannot be ignored and interpretation of any notification under the same given merit thereto. Coming to the subsequent other contention with regard to the number of employees employed at the establishment, we are of the opinion that the issue has been remanded by the learned Single Judge for fresh consideration and hence, the appellant cannot have any grievance in that respect. 11. Amount directed to be deposited for fresh consideration is an exercise of discretionary power. In our considered opinion it is neither perverse nor misdirected. Hence, we do not wish to interfere on that score also. 12. For the aforesaid reasons, we are not inclined to interfere with the judgment and order of the learned Single Judge. Accordingly, the appeal and connected applications are dismissed.