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:
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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
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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.
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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
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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
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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
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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-
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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
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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,
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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.
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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
APPENDIX
PETITIONER'S EXHIBIT:-
EXT.P1 : COPY OF THE AWARD DTD.02.05.2006 IN
I.D.No.20/05 OF THE 1st RESPONDENT.
