- (1.) The Court.- The only question involved in this Writ Petition is whether the Nursing Home run by the Petitioner Company is an "institution for treatment or care of the sick, infirm, destitute or mentally unfit" within the meaning of section 4(1) (c) of the West Bengal Shops and Establishments Act, 1963, to go out of the provisions of that Act. It is not disputed, as it obviously can not be, that if the Nursing Home is such an institution as aforesaid, then, under the provisions of section 4(1) of the Act, "this Act shall not apply to the institution".
(2.) Some of the employees of this Nursing Home, being the Respondents No. 3, No. 4, No. 5 and No. 6 made applications to the Referee, the Respondent No. 2, being an officer or authority appointed under section 14(2) of the Act, for the recovery of their wages alleged to have been unlawfully deducted by the petitioner and the Referee, by the impugned order dated 2.4.90, has held the Nursing Home to be "simply a Commercial Establishment for carrying on trade or business" to be fully and squarely governed by the provisions of the Act and not to be exempted from its operation under section 4(1) (c) thereof. The Petitioner seeks to assail that order in this Writ Petition.
(3.) At one stage, Mr. Gupta, the learned Counsel for the Petitioner attempted to urge that the Nursing Home of the Petitioner is not a "Commercial Establishment" within the meaning of the Act and as such the Act would not apply thereto. But the main argument advanced by Mr. Gupta for the Petitioner is that even assuming the Nursing Home to be such a Commercial Establishment, the Act would not apply to this establishment, even if commercial, as it is an institution "for the treatment or care of the sick, infirm, destitute or mentally unfit" within the meaning of section 4(1) (c) of the Act, and would thus stand outside the Act. Mr. Bhattacharjee, the learned Counsel for the Respondents Nos. 3 to 6, has, however, argued that even if the Nursing Home is, as a Nursing Home is expected to be, an establishment for treatment or care of the sick and infirm, it is not an institution to come within the protection or exemption as provided in section 4(1) (c) of the Act. The provisions of section 4(1) are reproduced hereinbelow for the facility of discussion. "4. Act or Some of its Provisions not Applicable to Certain Establishments Shops and Persons: (1) This Act shall not apply to - (a) offices of or under the Central or State Government, the Reserve Bank of India, any railway administration or any local authority; (b) Any railway service, airways service, water, transport service, tramway or motor service, postal, telegraph or telephone service, any system of public conservancy or sanitation of any industry, business or undertaking which supplies power, light or water to the public; (c) institutions for the treatment or care of the sick, infirm, destitute or mentally unfit; (d) shops or stalls in any public fair or bazar held for a charitable purpose; or (e) stalls and refreshment rooms at railway station, docks, wharves or airports.";