Calcutta High Court (Appellete Side)
Parimal Kumar Bose vs The Union Of India & Ors on 4 June, 2014
Author: Soumen Sen
Bench: Soumen Sen
1
13 04.06.2014
SD
W. P. 12192 (W) of 2014
Ct.
No. 5. With
W. P. 25136 (W) of 2007
Parimal Kumar Bose
Vs.
The Union of India & Ors.
Mr. Saptangsu Basu,
Mr. Achyut Basu,
Mr. Rudra Jyoti Bhattacharyya,
Mr. Rup Chand Chakraborty,
Mr. Arindam Saha,
Ms. Debjani Ghosal.
..... For the Petitioner.
Mr. Mihir Kundu.
.... For the Respondents.
The two writ petitions are taken up together and disposed of by this common judgment.
The writ petitioner, carrying on business under the name and style of " M/s. Cure Nursing Home" as proprietor thereof. The grievance of the petitioner in the first writ petition is that although the said Nursing Home does not come within the purview of the provisions of the Employees' Provident Fund & Miscellaneous Provisions Act, 1952 (hereinafter referred to as the said Act), the authority by order dated 15th October, 2007 disregarding the objection raised by the petitioner illegally and arbitrarily extended the provisions of the Act by classifying the establishment as hospital. Inasmuch as the said establishment does not employ persons more than twenty the impugned order dated October 15, 2007 the extending provisions of the said Act to the establishment of the petitioner is illegal and without jurisdiction.
Although the said writ petition was filed in the year 2007 challenging the said impugned order, but the said writ petition was never heard excepting on 9th May, 2008, when the said matter was released by a learned Single Judge due to lack of determination.
Since no interim order was passed, the authorities concerned 2 proceeded with the order passed under Section 7A of the said Act and have determined Rs. 9,71,910/- as the amount due and payable by the said establishment in determination of the dues within Section 7A of the said Act. This has resulted in filing the second writ petition being W. P. 12192 (W) of 2014.
In assailing the order passed with regard to the applicability of Section 7A of the said Act to the establishment of the petitioner, Mr. Saptangsu Basu, learned counsel for the petitioner submits that the authorities concerned has completely misdirected their mind and acted without jurisdiction in treating the establishment of the petitioner as a hospital since it would ex-facie appear from the record disclosed before the authorities concerned that the said establishment was registered under the West Bengal Clinical Establishment (Amendment) Act, 1950 as a nursing home having sanctioned beds twenty. It is argued that Schedule-I to the 1952 Act does not include hospital or nursing home inasmuch as the classification of the establishment of the petitioner as nursing home on the basis of Section 1(3)(b) is unsustainable as there is no notification extending the provisions of the Act to the establishment of the petitioner. It is further argued that reliance on certain documents by the authorities concerned in arriving at the finding extending the provisions of the Act to the establishment also suffers from arbitrariness inasmuch as the list relied upon by the authorities concerned showing employees strength of 21 includes the name of two persons who are in fact the owners and the employers. Their names could not have been taken into consideration in determining the strength of employees in the establishment.
Mr. Kundu, learned counsel appearing on behalf of the authorities concerned submits that on a proper and meaningful reading of Section 1(3)(b) of the said Act, the said establishment comes within the purview of the said Act and on a fact finding enquiry, the authorities concerned found that the strength of the employees at the relevant time was more than twenty-one and accordingly, the writ petitioner cannot escape its liability.
3However, none of the parties and more particularly the authorities concerned could not apprise this Court as to whether hospital has been included in Schedule I or there has been any notification by which the provisions of the said Act has been extended to hospitals.
This Court, however, draws attention of the learned counsels to a relevant Notification bearing No. GSR 1082 dated 15th September, 1973 which reads:
"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." (emphasis supplied) Mr. Saptangsu Basu, learned counsel for the petitioner argued that hospital is a huge establishment compared to a nursing home with more facilities and accordingly hospital and nursing home cannot be treated and considered alike. It is submitted that once the authorities have proceeded on the basis that the establishment of the petitioner is that of a hospital, the authorities concerned have presumed that the establishment of the petitioner would necessarily include manpower and strength above twenty and it was on such supposition and presumption that the provisions of the said Act has been extended to the petitioner.
Neither the EPF Act nor Clinical Establishment Act has defined hospital.
The word Hospital was derived from the Latin word 'hospos' as 'hospitalis' meaning hospitable.
The Word Hospital has been defined in Black's Law 4 Dictionary 4th Edn. as: - "An institution for the reception of care of sick, wounded, infirm, or aged persons, generally incorporated, and then of the classs of corporations called "eleemosynary" or "charitabke". Also the building used for such purpose.
According to Longman's Dictionary a hospital is a large building where sick or injured people receive medical treatment.
A hospital is usually referred to an institution in which sick or inured persons are given medical or surgical treatment and managed by professional physician, surgeons and nurses. People admitted to a hospital require acute medical services.
The word "Nursing Home" has been defined under Section 2
(d) of the West Bengal Clinical Establishment Act, 1950 as under :-
" (d) 'nursing home' means an establishment where persons suffering from illness, injury or infirmity whether of body or mind are usually [ received or accomodated or both] for the purpose of [observation], nursing and treatment and includes a maternity home".
'Nursing Home' according to Merriam Webster dictionary, is a private operated establishment where maintenance and personal or nursing care are provided for persons (as the aged or the chronically ill) who are unable to care for themselves properly.
Nurshing Homes are specialised in long term care. The staff may provide medical care as well as physical, speech and occupational therapy like a hospital. They try to have a neighbourhood feeling. The original of nursing home can be traced to 1896-1900 when private residential institutions converted them to nursing homes to take care of persons unable to look after themselves as they were either aged or chronically ill. However, gradually the nature of activity has expanded and some nursing homes are set up like a hospital. There might be nurses' station on each floor. However, the fact remains that the nature of activity in both the institutions to some extent overlaps. The word 'hospital' is 5 more comprehensive than nursing home. Nursing home is a species of genus hospital.
In view of the aforesaid notification there cannot be any doubt that hospital has been included and brought within the purview of the provisions of the said Act. However, the fact would remains whether nursing home should come within the purview of the said Act.
The said G. S. R. 1082 in my view includes a nursing home as the said notification has used the terminology and phrase "every establishment known as hospital", which clearly brings within its fold even the nursing home since the basic feature of a hospital and nursing home are same excepting that the hospital would be a much larger establishment than a nursing home with more specialised services. The nature of the activity, terminology used in the said G.S.R and the definition of Nursing Home under the West Bengal Clinical Establishment Act, 1950, in my reading encompasses a nursing home and accordingly the argument made by Mr. Basu that nursing home would not come within the purview of the act fails.
Having regard to the terminology used in G. S. R. 1082, there cannot be any cavil of doubt that Nursing Home would come within the purview of the said G. S. R and accordingly the provisions of the said Act would be applicable to a nursing home. In fact the Kerala High Court in dealing in Kottayam Distt. Co.op Hospital vs. R. P. F. Commissioner, 2009 (121) FLR 1138 (Ker.) observed that the concerned establishment though actually not a hospital was very much liable to be brought within the coverage if it was "known as a hospital". The correctness and justifiability of the said notification is not under challenge in this writ application.
In view of the aforesaid, the first ground of challenge to the application of the provisions of the Act to the nursing home fails. However, with regard to the strength of the employees, it appears that there are certain grey areas and it would be better if an appropriate enquiry is made by the authorities concerned with regard 6 to the strength of the employees. The said nursing home is functioning as nursing home since 1991 and the licence have been renewed from time to time. If the strength of the employees are more than twenty, the provisions of the Act needless to mention would be immediately attracted.
Although the order under Section 7A was appealable, but the writ petitioner filed this writ petition on the ground that the order passed by the authority concerned is without jurisdiction. Since it appears that the said order is passed on the basis of G. S. R. 1082 it cannot be said that the order passed by the Assistant Provident Fund Commissioner and the Assessing Officer in extending the scope and applicability of Section 7A to the establishment is without jurisdiction. However, for the limited purpose of ascertaining the strength of employees, the matter is remanded back to the authorities concerned.
Since an adjudication has been made and it appears now that Rs. 9 lakhs are due and payable, the petitioner is directed to deposit with the Assistant Provident Fund Commissioner a sum of Rs. 4 lakhs within three weeks from date and in the event such amount is deposited, the Assistant Provident Fund Commissioner and the Assessing Officer shall reconsider the issue relating to the strength of the employees and shall pass a fresh order after giving a reasonable opportunity of hearing to the petitioner within a period of twelve weeks from the date of such deposit. It is needless to mention that in the event on enquiry and physical verification it is found that the establishment never employed persons more than twenty, the establishment cannot come within the purview of the Act at all. However, these are matters to be considered and decided by the Assistant Provident Fund Commissioner and the Assessing Officer.
In the event the said amount is not deposited, the order passed by the Assistant Provident Fund Commissioner and the Assessing Officer on 28th March, 2014 would be executable forthwith.
7However, there shall be an unconditional stay of the impugned order dated 28th March, 2014 for a period of three weeks from date. The authorities concerned if on examination of facts found that the establishment does not come within the purview of the Act, they shall refund the amount so deposited forthwith.
With the aforesaid direction and observation both the writ petitions are disposed of.
There shall, however, be no order as to costs.
(SOUMEN SEN, J.) 8