Kerala High Court
General Secretary vs Industrial Tribunal on 7 July, 2025
2025:KER:49795
W.P.(C).No.21669 of 2006
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
MONDAY, THE 7TH DAY OF JULY 2025 / 16TH ASHADHA, 1947
WP(C) NO. 21669 OF 2006
PETITIONER:
THE GENERAL SECRETARY
KERALA HOSPITAL EMPLOYEES SANGH (BMS),
VIVEKANANDA ROAD, THIRUVAMPADY, THRISSUR
REPRESENTED BY, SHRI.A.C.KRISHNAN.
BY ADVS.SRI.RAJIT
SRI.RANJIT BABU
RESPONDENTS:
1 THE INDUSTRIAL TRIBUNAL,
PALAKKAD.
2 SECRETARY,
MALANKARA ORTHODOX SYRIAN CHURCH MEDICAL MISSION
HOSPITAL,
CHOWANNOOR P.O., KUNNAMKULAM, THRISSUR.
BY ADV SRI.P.RAMAKRISHNAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 07.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2025:KER:49795
W.P.(C).No.21669 of 2006
2
S.MANU, J.
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W.P.(C).No.21669 of 2006
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Dated this the 07th day of July, 2025
JUDGMENT
The respondent management retrenched 15 Nursing Assistants with effect from 15.2.2004. Reasons stated by the management for retrenchment was that there was non- availability of sufficient work due to coming up of several other hospitals in the neighbourhood. Another reason stated was that a nursing school started functioning in the premises of the hospital and services of nursing students were also available.
2. The retrenched Nursing Assistants, through the petitioner union, raised industrial dispute. They contended that retrenchment was an act of victimization. They also contended that there was actually sufficient work in the hospital to retain them in service. Further contention of the Nursing Assistants was that the retrenchment was not on the basis of seniority and 2025:KER:49795 W.P.(C).No.21669 of 2006 3 hence the management violated Section 25G of the Industrial Disputes Act.
3. Government referred the issue for adjudication by an order dated 16.3.2005. The issue referred for adjudication was as to whether the retrenchment of 14 workers by the Malankara Orthodox Syrian Church Medical Mission, Kunnamkulam was legal. If not what are the reliefs the workers are entitled to get. Union filed a claim statement. Management justified its stand by filing a written statement. MWs.1 to 3 were examined on the side of the management and WW1 and WW2 were marked on the side of the union. Exts.M1 to M13 documents were marked by the management and Exts.W1 to W18 were marked by the union. The Tribunal, on 2.5.2006, passed an award holding that the retrenchment of the workers was valid and they were not entitled for any relief. Aggrieved by the award the union filed the above writ petition. Petitioner union contends that there was sufficient work to retain all retrenched Nursing Assistants.
2025:KER:49795 W.P.(C).No.21669 of 2006 4 They point out that evidence of MW1 was to the effect that the management was not running under loss and the hospital had expanded substantially over a period of 20 years. The union also contended that the numbers of patients visiting the hospital showed that the patients approaching the hospital had substantially increased. The union also contended that the Nursing School was started only in the year 2002 and therefore services of the Nursing students would become available only in 2005. However, the Nursing Assistants were retrenched in the year 2004. Hence, the union contended that the reasons given for retrenchment of the Nursing Assistants were not genuine.
4. The union also contended that the retrenchment was resorted to in violation of Section 25G of the Industrial Disputes Act. It was submitted that Ext.M4 seniority list as on 28.1.2004 was improper. The seniority list was not published so that the employees could not raise protest against the errors in the seniority list. The union pointed out that the evidence adduced 2025:KER:49795 W.P.(C).No.21669 of 2006 5 during the trial before the Industrial Tribunal would go to show that the actual date of joining of most of the retrenched Nursing Assistants were dates prior to the date of joining shown in the seniority list. Hence, it was clear that the seniority list was manipulated. It was further contended that in the case of two Nursing Assistants, the Tribunal found that the date of their joining mentioned in the seniority list was incorrect. Hence, the union contended that the retrenchment was not done on the basis of seniority and the provisions of Section 25G were violated.
5. It is not within the domain of this Court to re- appreciate the evidence adduced before the Industrial Tribunal. Scope of interference with respect to an award passed by the Industrial Tribunal, while exercising the power of judicial review, is very narrow. Hence, it will not be proper on the part of this Court to re-appreciate the evidence like an appellate authority. Nevertheless it is well within the scope of judicial review to 2025:KER:49795 W.P.(C).No.21669 of 2006 6 verify and satisfy that the findings of the Industrial Tribunal were on the basis of evidence and the appreciation of evidence by the Tribunal was not perverse.
6. The learned counsel for the union pointed out instances of many of the Nursing Assistants and brought it to the notice of this Court that the union had adduced evidence to show that they were working in the hospital much prior to the date of joining mentioned in the seniority list. Several items of evidences were pointed out by the learned counsel. The learned counsel also pointed out that in the case of 2 Nursing Assistants, the Tribunal accepted the case of the union and held that their seniority was not properly taken note of while preparing Ext.M4 seniority list. Therefore, at least in the case of 2 Nursing Assistants the Tribunal found that their seniority was not properly reflected in Ext.M4 seniority list.
7. The learned counsel appearing for the respondent management submitted that the retrenchment was proper and 2025:KER:49795 W.P.(C).No.21669 of 2006 7 justified. He submitted that the retrenched staff were in excess as the hospital was not in need of their services because of several other hospitals operating in the same area and also on account of availability of nursing students. He contended that the mandate of Section 25G was properly followed by the management and the seniority list was correct. He argued that the union could not prove before the Tribunal by adducing reliable evidence that the date of joining service with respect to the retrenched nursing staff were not properly shown in the seniority list. He argued that though some efforts were made by the union they could not adduce any convincing evidence before the Tribunal in support of their contention. Regarding the seniority list, the learned counsel pointed out that the same was forwarded to the District Labour Officer by the management and the said aspect was properly proved before the Tribunal. The learned counsel further contended that it is well settled by several judgments of the Hon'ble Supreme Court that re-
2025:KER:49795 W.P.(C).No.21669 of 2006 8 appreciation of evidence and entering into fresh findings are not within the scope of judicial review under Article 226 of the Constitution in labour matters. Hence, he submitted that the writ petition is totally devoid of merits and it is liable to be dismissed.
8. I have appreciated the contentions raised by both sides, perused the pleadings and also the documents. I find that in this case the union had a contention that the date of joining of many of the nursing staff was much prior to the date shown against their names in the seniority list. The union made some attempts to prove their contention by producing documents before the Tribunal. In the case of many of the retrenched staff such documents were produced. However, the Tribunal discarded such evidence except in the case of two retrenched employees. Reasons are given by the Tribunal for refusing to act upon the evidence adduced. In some instances the yardstick adopted by the Tribunal for appreciating the evidence adduced 2025:KER:49795 W.P.(C).No.21669 of 2006 9 by the union was not well within the accepted parameters of an adjudication by the Industrial Tribunal. The Tribunal ought to have borne in mind that the standard of proof required was not proof beyond doubt. Similarly, it is to be noted that at least in the case of two of the retrenched employees, the Tribunal agreed with the contention of the union that the respective dates of joining shown against their names in Ext.M4 seniority list was incorrect. However, according to the Tribunal, those employees were juniors and hence the wrong entry of their date of joining in Ext.M4 seniority list was of no consequence. Fact remains that the Tribunal found that, at least with respect to two of the employees, the date of joining of service shown in Ext.M4 was incorrect. In the case of many other retrenched employees also, evidence was adduced by the union showing that there were discrepancies in Ext.M4 list. The Tribunal relied on Ext.M4 stating the reason that the management had forwarded the said list to the District Labour Officer. However, 2025:KER:49795 W.P.(C).No.21669 of 2006 10 there is no case for the management and there is no evidence adduced to show that the said seniority list was circulated among the employees or was published any time so that the same would come to the notice of the employees. The employees never got any opportunity to raise any objections about the seniority list. Mere fact that it was submitted to the District Labour Officer is not a reason to presume that the said list was proper and the entries were correct. Hence, in my view the approach adopted by the Tribunal in appreciating the evidence and contentions raised with respect to correctness of Ext.M4 seniority list was not proper. Consequently, the finding entered into by the Tribunal regarding Section 25G of the Industrial Disputes Act also cannot be held proper. Hence, the outcome, the award, is vitiated. I, therefore, find it appropriate, in the interest of justice, to set aside the award and remit the matter for fresh consideration by the Tribunal.
2025:KER:49795 W.P.(C).No.21669 of 2006 11 This writ petition is, hence, allowed by setting aside the award and remanding the matter for fresh consideration and disposal by the Industrial Tribunal, Palakkad. The Tribunal shall make endeavour to conclude the proceedings as early as possible since the industrial dispute was of the year 2005.
Sd/-
S.MANU JUDGE skj 2025:KER:49795 W.P.(C).No.21669 of 2006 12 APPENDIX PETITIONER'S EXHIBIT:-
EXT.P1 : COPY OF THE AWARD DTD.02.05.2006 IN
I.D.No.20/05 OF THE 1st RESPONDENT.