WPST No. 123 of 2007. Case: D.N. De Homoeopathic Medical College and Hospital Employees' Union Vs The State of West Bengal. High Court of Calcutta (India)
| Case Number | WPST No. 123 of 2007 |
| Counsel | For Appellant: Aniruddha Chatterjee and Kushal Chatterjee,Advs.and For Respondents: Pranab Datta, Joytosh Majumder and Pinaki Dhole, Advs. |
| Judges | Nishita Mhatre and Tapash Mookherjee, JJ. |
| Issue | Administrative Tribunals Act, 1985 - Sections 19, 19(1), 3(q); Constitution Of India - Article 14, Constitution Of India - Article 226; Land Acquisition Act, 1894 - Section 6; Trade Unions Act, 1926 - Sections 13, 19, 4(2)(iv) |
| Citation | 2014 (3) CALLT 407 (HC), 2014 (5) CHN 277 (CAL) |
| Judgement Date | August 01, 2014 |
| Court | High Court of Calcutta (India) |
Judgment:
Nishita Mhatre, J.
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The challenge in this petition is to an order passed by the West Bengal Administrative Tribunal in O.A. No. 5416 of 1999. The Tribunal has dismissed the application filed by the petitioner which is a trade union registered under the Trade Unions Act, 1926. The Tribunal has held that the petitioner's claim for benefits for its members, who were employees of the D. N. De Homoeopathic Medical College and Hospital from 27th December, 1982 cannot be sustained and is without merit. The petitioner is a trade union representing the cause of its members who were all employed by the D. N. De Homoeopathic Medical College and Hospital as non-teaching and non-medical staff. In the year 1982, the Government of West Bengal decided to take over the management of the College and Hospital and to subsequently acquire the same. An Act known as the D. N. De Homoeopathic Medical College and Hospital (Taking Over of Management and Subsequent Acquisition) Act, 1983 (for short the Act of 1983) was promulgated for this purpose. The object of the Act was to take over the institution for a limited period and its subsequent acquisition, if necessary. The purpose was to make better provisions for the control, management and maintenance of the institution in public interest with a view to promoting public health. Under section 1(2) of the Act of 1983, it is deemed to have come into force on 27th December, 1982. Section 3 provides for the taking over of the management and control of the institution by issuing an order to that effect. Such an order for taking over the institution was to remain in force for a period of 5 years from the date of its publication in the Official Gazette as stipulated in section 3(2). This period of 5 years has been extended from time to time to 6 years, 8 years, 10 years and lastly to 15 years in 1994 by amending the Act of 1983. Section 3(2) provides that such an order made under sub-section (1), taking over the management and control of the institution would remain in force for the period stipulated from the date of publication in the Official Gazette or in the case of acquisition of the institution under section 4, till the date of such acquisition which ever was earlier.
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Section 4 makes it possible for the State Government to acquire the institution by notification during the period stipulated under section 3(2). Section 4 reads as follows:
"4. Acquisition of the institution.-
(1) The State Government may, if it so thinks fit, at any time within the period of fifteen years referred to in sub-section (2) of section 3, acquire the institution by notification.
(2) On and from the date of the notification referred to in sub-section (1) (hereinafter referred to as the date of vesting),-
(i) the institution shall stand transferred to, and vest absolutely in, the State Government, free from all encumbrances;
(ii) the institution shall be run by the State Government as a State institution;
(iii) any contract, whether express or implied, or other arrangement, whether made under any statute or otherwise, in relation to the management of any property or other affairs of the institution, and in force immediately before the date of vesting shall be deemed to have terminated on and from the date of vesting;
(iv) every person (not being a part-time or over-aged employee) who has been an employee of the institution before the date of vesting shall, on and from the date of vesting, become an employee of the State Government and shall hold office on the same terms and conditions as would have been admissible to him if there had been no such vesting and shall continue to do so unless and until his employment under the State Government is duly terminated or until the terms and conditions of his service are duly altered by the State Government by rules made in this behalf:
Provided that the services of every person who expresses his unwillingness to continue in service in terms of the provisions of this clause shall stand terminated with effect from the date of vesting or from any other date to be notified by him;
(v) notwithstanding anything contained in any law for the time being in force or in any contract, custom or usage, to the contrary, the transfer of the service of any employee of the institution to the service of the State Government shall not entitle such employee to any compensation on any account whatsoever and no claim in this behalf shall be entertained by any court, tribunal or authority."
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Section 5 speaks about the compensation payable, for the lands and buildings, which was to be determined by the competent authority under the Act applying the provisions of Land Acquisition Act, 1894 mutatis mutandis. Section 6 delineates the effect of the taking over of the management of the institution. Section 7 speaks about the appointment of an Administrator for managing the institution in accordance with the Act after the take over of the management. Section 13 stipulates that contracts, agreements, settlements, awards, standing orders and other instruments in force in relation to the institution immediately before the appointed day would remain suspended, if the Government thought it expedient to do so. The Act of 1983 had an overriding effect, notwithstanding any inconsistency with any other law.
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Thus from a perusal of the Act of 1983 it is apparent that the vesting of the properties of the management of the institution in the State Government occurred on 27th December, 1982 by a notification. The acquisition of this institution was complete on 22nd June, 1994.
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The petitioner espoused the cause of its members who are all nonmedical...
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