Kerala High Court
President, Kozhikode Jilla ... vs Manager,National Hospital on 25 April, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 25TH DAY OF APRIL 2023 / 5TH VAISAKHA, 1945
WP(C) NO. 18213 OF 2005
PETITIONER:
PRESIDENT
KOZHIKODE JILLA PRIVATE HOSPITAL AND MEDICAL,
SHOP WORKERS UNION, CITU, REG.NO.176/89,, CITU
JILLA CENTRE 6/638, YMCA CROSS ROAD,, KOZHIKDOE
673 001.
BY ADVS.
SRI.N.RAGHURAJ
SMT.K.AMMINIKUTTY
RESPONDENTS:
1 MANAGER
NATIONAL HOSPITAL,, MAVOOR ROAD, KOZHIKODE.
2 THE LABOUR COURT
KOZHIKODE.
BY ADVS.
SRI.M.ASOKAN
SRI.DEVAPRASANTH.P.J.
ADV. SUNIL KUMAR KURIAKOSE GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 25.04.2023, ALONG WITH WP(C).17374/2005, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NOS. 18213 OF 2005 & 17374 OF 2005
..2..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 25TH DAY OF APRIL 2023 / 5TH VAISAKHA, 1945
WP(C) NO. 17374 OF 2005
PETITIONER:
THE GENERAL SECRETARY
PRIVATE HOSPITAL AND MEDICAL SHOP WORKERS UNION,
CITU, REG.NO.176/89, CITU JILLA CENTRE 6/638,
YMCA, CROSS ROAD, KOZHIKODE 673 001.
BY ADV SRI.N.RAGHURAJ
RESPONDENTS:
1 THE MANAGING DIRECTOR
MAVOOR ROAD, KOZHIKODE.
2 THE LABOUR COURT KOZHIKODE.
BY ADVS.
SRI.M.ASOKAN
SRI.DEVAPRASANTH.P.J.
ADV. SUNIL KUMAR KURIAKOSE GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 25.04.2023, ALONG WITH WP(C).18213/2005, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NOS. 18213 OF 2005 & 17374 OF 2005
..3..
J U D G M E N T
These writ petitions have been preferred by a
workmen's union, challenging the award of the
Labour Court, Kozhikode. Their members have been
engaged by the National Hospital, Kozhikode.
They were denied employment. The dispute was
referred to the Labour Court, Kozhikode for
adjudication. The Labour Court accepted the
stand of the management that these workers were
engaged through a labour society and there was no
employer-employee relationship between the
management and the workmen. Challenging these
award, the Union preferred these writ petitions.
2. The learned counsel for the Union would
submit that absolutely no evidence was adduced by
the management to show that these workers were
engaged through society. It is submitted that
Muster Roll and other relevant records were
WP(C) NOS. 18213 OF 2005 & 17374 OF 2005
..4..
withheld from production before the Labour Court.
3. Per contra, the learned counsel for the
management, placing reliance on the judgment of
the Apex Court in Iswarlal Mohanlal Thakkar v.
Paschim Gujarat VIJ Company Ltd. And Another
[2014 KHC 4270] submits that judicial review is
warranted if there is glaring error committed by
the Labour Court. The Court cannot upset the
fact findings by invoking power of judicial
review under Article 226 of the Constitution of
India.
4. The learned counsel for the petitioner
in these cases, placed reliance on the judgment
of this Court in Kerala State Coir Corporation
Ltd. v. Industrial Tribunal [1995 (1) KLT 272]
and the Apex Court in Hussainbhai v. Alath
Factory Tozhilali Union [1978 KHC 625], would
argue that when it is established engagement of
workmen and the management is the real employer;
showing a contract between a society and the
WP(C) NOS. 18213 OF 2005 & 17374 OF 2005
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management. It would have no consequence
inasmuch as that pervasive control over the
worker was rest with the management. It is
submitted that the Labour Court ignored the
nature of relationship between the workers and
the management while deciding the issue.
5. It is true, as rightly pointed out by
the learned counsel for the petitioner in these
cases that merely pointing out the existence of
the society through whom the workers were
supplied cannot be decisive factor in deciding
the issue like this nature. The question is
whether the entire control and supervision of the
employee or worker was under the management or
employer or not. The Labour Court placed
reliance on the testimony of the witnesses to
hold that the workers were engaged through
contractor to attend the day-to-day works of the
hospital according to the exigency. It was also
noted that there was no evidence to show the
WP(C) NOS. 18213 OF 2005 & 17374 OF 2005
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regular service of each worker. The finding
would show that workers were engaged as and when
their service is required by the management.
6. The learned counsel for the petitioner
in these cases again pointed out the agreement
entered into between the management and the
society by referring to the period of agreement.
According to the learned counsel for the
petitioner, the period of agreement was only for
11 months and therefore, it has to be presumed
that after the 11 months, these workers were
directly engaged by the management.
7. The Labour Court found the lack of
evidence for the regular nature of employment of
the workers. The evidence clearly would show
that the workers were engaged as and when their
service is required by the management. In such
circumstances, the conclusion has been arrived at
by the Labour Court based on the evidence
available before the Court. There exists no
WP(C) NOS. 18213 OF 2005 & 17374 OF 2005
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perversity in the order appreciating the
evidence. The fact findings so rendered cannot
be reversed by invoking power under Article 226
of the Constitution of India. Accordingly, both
the writ petitions fails, dismissed. No costs.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
PR
WP(C) NOS. 18213 OF 2005 & 17374 OF 2005
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APPENDIX OF WP(C) 18213/2005
PETITIONER EXHIBITS
EXHIBIT P1 TRUE PHOTOCOPY OF THE AGREEMENT DATED
08.01.1993
EXHIBIT P2 TRUE PHOTOCOPY OF THE COMMON AWARD IN
I.D NO.5/98 AND I.D 40/97
WP(C) NOS. 18213 OF 2005 & 17374 OF 2005
..9..
APPENDIX OF WP(C) 17374/2005
PETITIONER EXHIBITS
EXHIBIT P1 TRUE PHOTOCOPY OF THE ABOVE MENTIONED
AGREEMENT DATED 08.01.1993
EXHIBIT P2 TRUE PHOTOCOPY OF THE COMMON AWARD IN
I.D NO.5/98 AND I.D 40/97
