Kerala High Court
Kozhikode District Private Hospital vs Labour Court,Kozhikode on 20 June, 2024
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
WP(C) NO. 10772 OF 2013
AGAINST THE AWARD IN ID NO.19 OF 2012 OF LABOUR COURT, KOZHIKODE
PETITIONER:
KOZHIKODE DISTRICT PRIVATE HOSPITAL &
MEDICAL SHOP WORKERS UNION (CITU), CITU DISTRICT
CENTRE,SK TEMPLE ROAD, KOZHIKODE
REPRESENTED BY ITS GENERAL SECRETARY.
BY ADVS.
SMT. A. K. PREETHA
SRI. C. ANIL KUMAR
RESPONDENTS:
1 THE LABOUR COURT,
KOZHIKODE - 673 001.
2 CHEST HOSPITAL,
PAVAMANI ROAD, KOZHIKODE - 673 004,
REPRESENTED BY ITS MEDICAL SUPERINTENDENT
DR. M. A. ABDULLA.
BY ADVS.
SRI. K. M. FIROZ
SMT. M. SHAJNA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 10772 OF 2013
2
DINESH KUMAR SINGH, J.
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W.P.(C) No. 10772 of 2013
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Dated this the 20th day of June, 2024
JUDGMENT
1. The present writ petition has been filed impugning the Award
dated 31.10.2012 passed by the Labour Court, Kozhikode in I. D. No.
19 of 2012.
2. The State Government vide the Government Order dated
10.04.2012, referred the following industrial dispute for adjudication
by the Labour Court under Section 10(1)(C) of the Industrial Disputes
Act, 1947: "Whether the decision of the management of Chest Hospital,
Kozhikode to superannuate its employees including Smt. Mallika,
Sweeper, Chest Hospital at the age of 55 is justifiable? If not what relief
the workers are entitled to?"
3. The petitioner Union's stand before the Labour Court that, the
provisions of Industrial Employment (Standing Orders) Act, 1946 are
applicable to the management of the establishment. Under the
model standing order, the retirement age of the workers is 58 years
and therefore, age of retirement in the establishment should also be
58 years. The Labour Court framed the question that, whether the
provisions of the Industrial Employment (Standing Orders) Act, 1946
WP(C) NO. 10772 OF 2013
are applicable in the management establishment or not?.
4. The Labour Court considered the definition of Industrial
Establishment under Section 2(e) of the Industrial Employment
(Standing Orders) Act, 1946 as well as definition under Clause (ii) of
Section 2 of the Payment of Wages Act, 1936. The Labour Court also
held that the Hospital is not a factory as specified in Section 2(ii) of
the Payment of Wages Act, 1936. The Labour Court relying on the
Judgment of the Delhi High Court in the case of Indraprastha
Medical Corporation Ltd. vs. NCT of Delhi and Others [130 (2006)
DLT 292] as well as Judgment of this Court in W.P.© No. 5306 of
2005 (F) [Cosmopolitan Hospitals Pvt. Ltd. v. T. S. Anilkumar and
others] held that the Industrial Employment (Standing Orders) Act,
1946 is not applicable to the hospitals. Therefore, the age of
retirement prescribed under the model standing order cannot be the
age of retirement in a hospital.
5. At the relevant time, the age of retirement in Government was
55 years. It appears that the respondent hospital also applied the age
of retirement as 55 to its employees. This is generally perceived that
the Government is a model employer. Therefore, there is nothing
wrong in prescribing age of retirement as 55 years, which was the age
of retirement of the Government employees at the relevant time.
WP(C) NO. 10772 OF 2013
6. The learned Counsel for the petitioner however submits that
the Tribunal was bound to answer the reference considering all the
relevant factors such as nature of work assigned to the employees in
the course of their employment, nature of wage structure paid to
them, retirement benefits and other amenities available to them,
climate and character of the work place and the age of
superannuation fixed in comparable industries in the same region.
The Labour Court has not considered any of these factors and has
answered the reference only on the ground that the Industrial
Employment (Standing Orders) Act, 1946 is not applicable to the
Hospitals. The learned Counsel for the petitioner has placed reliance
on the Judgment in the case of Guest, Keen, Williams Pr. Ltd.,
Culcutta v. P. J. Sterling [1959 KHC 616] particularly paragraphs 24
and 25 which would read as under;
24. We would, however, like to add that this
conclusion should not be taken as a decision
on the general question of fixing the age of
superannuation in the case of industrial
employees. In fixing the age of
superannuation industrial tribunals have to
take into account several relevant factors.
What is the nature of the work assigned to
the employees in the course of their
employment? What is the nature of the wage
structure paid to them? What are the
WP(C) NO. 10772 OF 2013
retirement benefits and other amenities
available to them? What is the character of
the climate where the employees work and
what is the age of superannuation fixed in
comparable industries in the same region?
What is generally the practice prevailing in
the industry in the past in the matter of
retiring its employees? These and other
relevant factors have to be weighed by the
tribunal in every case when it is called upon
to fix an age of superannuation in an
industrial dispute. In the present case, as we
have already observed, the age of 55 has been
fixed by both the tribunals for future entrants;
and this is substantially based on the standing
order which we have already considered. In
regard to the prior employees it is not
seriously disputed that the retirement age can
and may be fixed at 60. it is under these
circumstances that we have come to the
conclusion that the age of superannuation for
prior employees should be fixed at 60.
25. In regard to the 47 workmen shown in
the list attached to the reference it appears
that all of them have already passed the age
of superannuation. Annexure 3 giving the
details about these workmen which has been
filed by the applicant shows the year of birth
of each one of them and the entries in the
relevant column indicate that none of them
would be entitled to claim reinstatement now
WP(C) NO. 10772 OF 2013
as a result of this judgment. Besides as we
have already pointed out they have accepted
the order of retirement without protest and
have voluntarily and willingly received their
provident fund, gratuity as well as presents
given to them by the appellant. The appellant
has also appointed the relatives of many of
these retired men. We would, therefore,
direct that none of them is entitled to
reinstatement.
7. The reference was made on behest of the petitioner's Union.
The petitioners have not lead any evidence in respect of the factors
which are mentioned in the aforesaid cited Judgments. The only one
contention was raised before the Labour Court that, under the model
standing order, the age of retirement is 58 years and, therefore, the
age of retirement of the employees of respondent Hospital should be
58 years. Once it has been found that the provisions of the Industrial
Employment (Standing Orders) Act, 1946 are not applicable to the
Hospital, there was no question of applying the age of retirement as
mentioned in the model employment standing order. In view thereof,
I do not find that the learned Labour Court has misdirected itself by
answering the reference in negative.
8. The learned Counsel for the respondent hospital submits that
w.e.f. 26.02.2016, in view of the agreement between the labour
WP(C) NO. 10772 OF 2013
unions and the hospital management, now the age of retirement of
the employees in Hospital is 58 years. Therefore, I do not find that
the learned Labour Court has misdirected itself or the decision of the
Labour Court suffers from any illegality of perversity. Hence the
present writ petition fails and it is hereby dismissed.
Sd/-
DINESH KUMAR SINGH
JUDGE
Svn
WP(C) NO. 10772 OF 2013
APPENDIX OF WP(C) 10772/2013
PETITIONER'S EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE REFERENCE ORDER G.O(RT) NO
542/2012/LBR DATED 10/4/2012
EXHIBIT P2 A TRUE COPY OF THE CLAIM STATEMENT FILED BY THE
PETITIONER UNION IN I.D NO 19/2012
EXHIBIT P3 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY
THE 1ST RESPONDENT IN I.D NO 19/2012
EXHIBIT P4 A TRUE COPY OF THE AWARD DATED 31-10-2012
PASSED BY THE LABOUR COURT KOZHIKODE IN I.D NO
