Calcutta High Court (Appellete Side)
Manas Neogi vs The Member Secretary on 3 December, 2024
Author: Soumen Sen
Bench: Soumen Sen
03.12.2024
Sl Nos.2-4
Court No.12
(gc/sg)
FMA 622 of 2024
CAN 1 of 2024
With
FMA 675 of 2024
CAN 1 of 2024
With
FMA 681 of 2024
CAN 1 of 2024
Manas Neogi
Vs.
The Member Secretary, District Health &
Family Welfare Samity, Hooghly & Anr.
Mr. Souri Ghosal,
Mr. Subhojit Mukherjee
...for the Appellant.
Mr. Md. Galib,
Mr. Sutanu Chakrabarti
...for the State.
1.The appellant is the proprietor of AIDC Labs to run laboratories under PPP Model of Rural Hospitals of Hooghly District under an agreement dated 14th October, 2014. The said agreement was valid for a period of five years from the date of signing subject to renewal of such terms and conditions and for such a period as may be mutually decided by both the parties within the overall policy framework of the Government of West Bengal. The said agreement also contains an arbitration clause under Clause 8.2. The said clause was 2 preceded by an amicable resolution procedure in clause 8.1 for the parties to follow in order to resolve their disputes through the intervention of the Principal Secretary-Health, Department of Health and Family Welfare, GoWB. There are numerous proceedings by and between the parties concerning the eligibility of the petitioner to continue and use the premises of the Government beyond 31st January, 2017 as it is on that date the tenure had ended in terms of the agreement. The State continued with the arrangement without formally renewing the partnership and in such a scenario, the notice of March 22, 2018 was considered to be a cessation of the voluntary agreement but not on termination of agreement that the State was obliged to continue was the observation of the Division Bench in its order dated 17th January, 2020 in FMA 282 of 2020. The Hon'ble Division Bench, however, has held that no mandamus could be issued to command the State to enter into a new agreement when no formal agreement was in force at the time of the purported termination.
2. The agreement dated 14th October, 2014 in Clause 7.1 refers to various events and instances on the occurrence of which the 3 agreement could be terminated. Admittedly, during the validity period of the agreement, no termination notice was issued. It is now being urged that by subsequent conduct, the arrangement was renewed from time to time and the petitioner is discharging his duties and functions and on receipt some payments on the basis of the service rendered under the original agreement for the extended period. The application for appointment of Arbitrator was dismissed due to various defects in the said application and not on merits. We have been informed that the petitioner has taken steps for appointment of Arbitrator. However, the learned Counsel for the parties in all fairness have agreed to the appointment of the Arbitrator by this Court in this proceeding without requiring the appellant to file any application afresh for appointment of an Arbitrator.
3. One of the issues raised by Mr. Souri Ghosal, learned Counsel appearing on behalf of the appellant/petitioner is that by conduct, the period has been extended from time to time and discontinuation of such arrangement was unlawful. Admittedly, no formal agreement was entered into between the petitioner and the Health Department for continuation of the 4 said arrangement beyond 31st January, 2017 for which the coordinate Bench had treated the notice dated 22nd March, 2018 as a cessation of the voluntary agreement but not on termination of an agreement. It is being contended that till date the appellant is in possession and has been discharging the function on the basis of the arrangement that continued beyond 31st January, 2017 and is entitled to the remuneration for the services rendered. It is further submitted that the petitioner was receiving payment for such services rendered.
4. On such conspectus of facts, it appears that a coordinate Bench on 22nd May, 2024 directed status quo of the portion in the Singur Rural Hospital under the alleged occupation of the appellant and of his equipments lying thereat till 24th May, 2024 and the said interim order was extended from time to time after hearing the learned counsel for the parties before this appeal is taken up by the present Bench on 26th November, 2024.
5. In view of the fact that the parties have consented to the appointment of an Arbitrator we feel in the interest of justice, the order of status quo passed on 22nd May, 2024 shall continue for a period of eight weeks from date 5 and it would be open for the appellant to pray for interim order afresh before the expiry of the said period and the learned Arbitrator may consider such prayer without being influenced by any observation made in this order or in the order dated 22nd May, 2024.
6. We appoint Hon'ble Justice Mr. Tapas Mookherjee (Retired) as Arbitrator.
7. Mr. Mookherjee shall fix his remuneration commensurate with his position in consultation with the parties at the first sitting. It is needless to mention that all costs, charges and expenses in connection with arbitration proceeding shall be borne by the parties in equal measure. The learned Arbitrator shall be entitled to appoint a personal staff and a stenographer, whose expenses are also to be borne by the parties in equal measure.
8. The learned Arbitrator shall make a declaration in terms of Section 12(5) read with VII Schedule of the Arbitration and Conciliation Act, 1996 before commencement of the arbitration proceeding.
9. Accordingly, the appeals and the connected applications are disposed of.
10. However, there shall be no order as to costs. 6
11. Urgent Photostat certified copy of this order, if applied for, be given to the parties upon compliance of all necessary formalities.
(Soumen Sen, J.) (Biswaroop Chowdhury, J.)