Kerala High Court

State Of Kerala vs Valluvanad Hospital Complex ... on 12 June, 2023

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                     &
                 THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
          Monday, the 12th day of June 2023 / 22nd Jyaishta, 1945
                            WA NO. 1014 OF 2023

  AGAINST THE JUDGMENT DATED 23.01.2023 IN WP(C) 24067/2018 OF THIS COURT

APPELLANTS/RESPONDENTS 1 AND 2 IN W P (C):

  1. STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR &
     SKILLS (E) DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
     THIRUVANANTHAPURAM, PIN - 695001
  2. DISTRICT LABOUR OFFICER, PALAKKAD, PIN - 679001

BY GOVERNMENT PLEADER

RESPONDENTS/PETITIONERS IN W P (C):

  1. VALLUVANAD HOSPITAL COMPLEX LIMITED ETC. KANNIYAMPURAM POST,
     OTTAPPALAM, PALAKKAD-679 104,REPRESENTED BY ITS CHAIRMAN, DR.
     RAMAKRISHNAN
  2. MODERN HOSPITAL KOOTTANAD, PALAKKAD-679 533, REPRESENTED BY ITS
     MANAGING PARTNER DR. RAMAKRISHNAN.

BY ADV.SRI.K.K.PREMALAL FOR R1


     Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to pass an order staying the operation and implementation of judgment
dated 23.01.2023 in W.P.(C) No. 24067 of 2018 pending disposal of the
above writ appeal.


     This Writ Appeal coming on for orders on 12.06.2023 upon perusing
the appeal memorandum, the court on the same day passed the following:
       ALEXANDER THOMAS & C.JAYACHANDRAN, JJ.
               =========================
                       W.A. No. 1014 of 2023
        (Arising out of impugned judgment dated 23.01.2023 in
                       W.P.(C)No.24067 of 2018)
               =========================
              Dated this the 12th day of June, 2023

                               ORDER

Alexander Thomas, J.

Admit W.A.

2. Sri. K.K.Premlal, learned Advocate has taken notice for both

the respondents in this appeal. Registry will show the name of the

said advocate in the cause list. Service complete.

3. Sri. Asok M.Cherian, learned Additional Advocate General,

instructed by Smt. Sabeena P.Nair, learned Government Pleader,

appearing for the appellants, would submit that this Court had

already admitted a series of connected writ appeals arising out of the

very same impugned common judgment, but to the extent it relate to

other WPCs and has granted stay. Order dated 30.05.2023, rendered

by this Court in W.A.Nos. 1002 and 988 of 2023, reads as follows:

"Admit Writ Appeals.

2. Issue notices to the two respondents in W. A. No. 1002/2023 and the two respondents in W. A. No. 988/2023 by speed post, returnable within 2 weeks.

3. It is urged by Sri.Ashok M.Cherian, learned Addl.

Advocate General, that the impugned judgment of the learned Single Judge, quashing the statutory notification issued by the State Government, in exercise of its powers under Sec.5(2) of the Minimum Wages Act, 1948, for W.A. No. 1014 of 2023

regulating the minimum wages of nurses and other personnel in the private medical establishments, is legally wrong and is liable for interdiction at the hands of the appellat court for reasons more than one. The finding of the learned Single Judge, as if the State Government should be faulted for having taken recourse to both the options envisaged as per Clause (a) & Clause (b) of Sec.5(1), is improper or illegal etc., is not correct, inasmuch as it has been held by the Constitution Bench of the Apex Court, in the decision Chandra Bhavan Boarding and Lodging, Bangalore v. State of Mysore & Anr. [(1969) 3 SCC 84], that the Government would either take advice of the Committee or proceed itself with sufficient materials. Further that, when the Committee is appointed, it is not as if the State Government is bound to accept the recommendation and it has been categorically held by the Apex Court in Chandra Bhavan's case supra, that, when a power is given to an authority to have recourse to different procedures under different circumstances, that power cannot be said to be an arbitrary power and that the power under Sec.5(1) is given to the State Government. Further that, the Apex Court has also observed therein that the power conferred under Sec.5(1) by the Parliament is on the State Government and not to any petty official and that, the State can be trusted to exercise that power to further the purposes of the Act. Further, it has also been held therein that, if the Government is satisfied that it has enough material before it to enable it to proceed under Sec.5(1)(b), it can very well do so and which procedure should be adopted in any particular employment depends on the nature of employment and the information the Government has in its possessions about the employment and hence, powers conferred on the Government cannot be considered as unguided or regulatory or arbitrary. Hence, it is argued by the learned Addl. Advocate General, that the above perspective taken by the learned Single Judge, in faulting the State Government for allegedly having taken recourse to both the options, envisaged as per Clause (a) & Clause W.A. No. 1014 of 2023

(b) of Sec.5(1), does not reflect the correct legal position. Further that, the principles laid down by the Constitution Bench in Chandra Bhavan's case supra [(1969) 3 SCC 84], has been followed by the Division Bench of this Court in cases as in Kerala Non Banking Finance Companies Welfare Association v. State of Kerala & Ors. [2019 (5) KHC 934] . In the said case, the Government appointed a Committee to conduct an enquiry and stakeholders were also heard. Despite the law that the State Government could have then brought out a notification under Sec.5(2), the Government issued a notification under Sec.5(1)(b), calling for representations which were considered. The Division Bench held that there are no reasons to look into the constitution of the Committee or interfere with the notification, on the ground that the Committee members were not true representatives of the employment sector or the employer organizations, etc. Further, it is pointed out that the Apex Court has held, in the decision in Ministry of Labour and Rehabilitation v. Tiffin's Barytes Asbestos & Paints Ltd. [(1985) 3 SCC 594], that the statutory notification, issued in the matter of fixation of Minimum Wages as per the Minimum Wages Act, is not to be likely to be interfered by recourse to the power under Article 226 of the Constitution of India by the Court on the ground of some irregularities in the constitution of the Committee or the procedure adopted by the Committee. It has been held therein that the Committee acts only as a recommendatory body and the final notification, fixing minimum wages, has to be made by the Government. It has been held therein that a notification fixing minimum wages, in a country where wages are already minimal, should not be interfered with under Article 226 of the Constitution of India, except on the most substantial grounds.

4. Further, it is argued by the learned Addl. Advocate General that it is well settled by the decisions of this Court as in Association of Planters of Kerala v. State of Kerala [1996 (1) KLT 377], that Sec.5(2) of the Minimum Wages Act enables the State Government to give W.A. No. 1014 of 2023

effect to the proposal retrospectively, as the Government is entitled to give restrospective effect to the notification under the expression "otherwise provided". Hence, the finding of the learned Single Judge, as if the Government has no jurisdiction to take recourse to such an option, is not legally correct. Further, it is also submitted that the observations made by the learned Single Judge, in the impugned order dismissing the review petition, that the directions in the impugned judgment is an innocuous one and it may not affect the rights of the parties, etc., are not legally correct. The impugned directions of the learned Single Judge has the effect of quashing the statutory notification and remitting the matter, compelling the Government to redo the entire exercise, which, according to them, has been done fairly, properly and in a legally correct manner. That, such a statutory notification cannot be treated as a simple administrative order, to be reissued after further hearing and that too, without any real and compelling reasons. Further, it is pointed out that the observation in the impugned order dismissing the review petitions, that the contentions of the Government have been duly noted in paras 10 to 13 of the impugned judgment, is not correct, inasmuch as only the factual matrix of the dispute is mentioned therein and not the submissions and contentions of the Government. Further, it is also pointed out that the matters were taken up for judgment without affording reasonable opportunity of hearing to the State authorities, who were represented by the Addl. Advocate General, etc.

5. Having regard to these submissions, we find that a strong prima facie case is made out by the appellant State. If the entire exercise is re-done now and ultimately, the appellate Court finds that the impugned judgment is liable for interdiction, then it might cause unnecessary complications to both sides. Moreover, the learned Addl. Advocate General submits that, if no stay is granted, then the successful writ petitioners may take recourse to Contempt proceedings for enforcement of the impugned directions. In the light of these aspects, we find that the W.A. No. 1014 of 2023

balance of convenience is also tipped in favour of the State. In that view of the matter, it is ordered that the operation and enforcement of the impugned judgment dated 23.1.2023, rendered by the learned Single Judge in WP(C).Nos. 15243 & 14778 of 2018, will remain stayed and shall be kept in abeyance. These interlocutory directions will be in force for a period of 2 months."

4. Accordingly, it is ordered in the interest of justice that

operation and enforcement of the impugned judgment dated

23.01.2023 rendered by this Court in W.P.(C)No.24067/2018, will

remain stayed and shall be kept in abeyance.

5. Sri. K.K.Premlal, learned Counsel appearing for the

respondents herein would submit on the basis of instructions that

though the learned Single Judge in the aforesaid W.P.(C) has not

granted stay of the operation and enforcement of the impugned

notification regulating minimum wages, but had issued interim

protective orders in favour of the writ petitioners by ordering that

further coercive steps in pursuance to the impugned notification

regulating minimum wages in the instant case will not be pursued by