Kerala Medical Services Corporation Ltd. v. District Labour Officer and Others (W.P.(C) Nos. 19659 of 2020 and 30171 of 2021)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ## **`WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024 / 2ND PHALGUNA, 1945`** ## **`WP(C) NO. 19659 OF 2020`** ## **`PETITIONERS:`** ``` 1K. VINOD KUMAR, AGED 59 YEARS, KALATHIL HOUSE, WEST HILL, KOZHIKODE, PIN-673 005. 2LALU.A.K., AGED 37 YEARS, KUMALAKKAMMADATHIL, SANTHINAGAR COLONY, WEST HILL, KOZHIKODE, PIN-673 005. 3SUNILKUMAR.M., AGED 45 YEARS, SREEPUSHPPAM HOUSE, EDAKODE P.O., KOZHIKODE, PIN-673 005. 4SHAFEER.N.P., AGED 32 YEARS, NALUKUDY PARAMBU, WEST HILL, KOZHIKODE, PIN-673 005. BY ADVS. T.R.HARIKUMAR ARJUN RAGHAVAN ``` ## **`RESPONDENTS:`** - `1 THE KERALA MEDICAL SERVICES CORPORATION LTD, REPRESENTED BY ITS MANAGING DIRECTOR, NEAR WOMEN AND CHILDREN HOSPITAL, HEALTH AND WELFARE FAMILY COMPOUND, THYCAUD, THIRUVANANTHAPURAM-695 014.` - `2 THE MANAGING DIRECTOR, KERALA MEDICAL SERVICES CORPORATION LTD., NEAR WOMEN AND CHILDREN HOSPITAL, HEALTH AND WELFARE FAMILY COMPOUND, THYCAUD, THIRUVANANTHAPURAM-695 014.` - `3 THE MANAGER, DISTRICT DRUG WAREHOUSE, KERALA MEDICAL SERVICES CORPORATION LTD., KARUVANNUR P.O., NADUVANNUR VIA KOZHIKODE-KUTTIADY HIGHWAY, KOZHIKODE-673 614.` WP(C) NOS. 19659 OF 2020 AND 30171 OF 2021 2 ``` 4THE DISTRICT LABOUR OFFICER, OFFICE OF THE DISTRICT LABOUR OFFICER, WAYANAD RD, ERANHIPAALAM, MALABAR HOSPITAL, CIVIL STATION, PALATTUTHAZHAM, KOZHIKODE-673 020. 5THE DEPUTY LABOUR COMMISSIONER, APPELLATE AUTHORITY UNDER HEAD LOAD WORKERS ACT, OFFICE OF THE DEPUTY LABOUR COMMISSIONER, KOZHIKODE-673 020. BY SRI.M.AJAY, SC SRI.VENUGOPAL V, GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.02.2024, ALONG WITH WP(C).30171/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) NOS. 19659 OF 2020 AND 30171 OF 2021 3 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024 / 2ND PHALGUNA, 1945 ``` ## **`WP(C) NO. 30171 OF 2021`** ## **`PETITIONERS:`** - `1 KERALA MEDICAL SERVICES CORPORATION LTD., (REPRESENTED BY ITS MANAGING DIRECTOR), REGISTERED OFFICE, THYCAUD, THIRUVANANTHAPURAM, PIN-695 014.` - `2 THE MANAGER, DISTRICT DRUG WAREHOUSE, KOZHIKODE DISTRICT, KARUVANNUR P.O., NADUVANNUR VIA, KOZHIKODE, PIN-673 614.` ``` BY ADV M.AJAY ``` ## **`RESPONDENTS:`** - `1 THE DISTRICT LABOUR OFFICER, OFFICE OF THE DISTRICT LABOUR OFFICER, WAYANAD ROAD, CIVIL STATION P.O., KOZHIKODE, PIN-673 020.` - `2 THE DEPUTY LABOUR COMMISSIONER, OFFICE OF THE DEPUTY LABOUR COMMISSIONER, KOZHIKODE CIVIL STATION, KOZHIKODE, PIN-673 020.` - `3 THE DISTRICT SECRETARY, KOZHIKODE DISTRICT, KAYATTIRAKKU THOZHILALI UNION (INTUC), JAVAHAR BUILDINGS, K.P.KESAVA MENON ROAD, KOZHIKODE, PIN-673 001.` - `4 K.VINOD KUMAR, KALATHIL HOUSE, WEST HILL P.O., KOZHIKODE, PIN-673 005.` WP(C) NOS. 19659 OF 2020 AND 30171 OF 2021 4 ``` 5SUNIL KUMAR, SREEPUSHPPAM HOUSE, EDAKKODE P.O., KOZHIKODE, PIN-673 005. ``` ``` 6LALU A.K., KUMALAKKAMMADATHIL, SANTHINAGAR COLONY, WEST HILL P.O., KOZHIKODE, PIN-673 005. 7SHAFEER N.P., NALUKUDY PARAMBU, WEST HILL P.O., KOZHIKODE, PIN-673 005. ``` ``` BY ADVS. SRI.T.R.HARIKUMAR SRI.ARJUN RAGHAVAN SRI.VENUGOPAL V, GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.02.2024, ALONG WITH WP(C).19659/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) NOS. 19659 OF 2020 AND 30171 OF 2021 5 ## JUDGMENT W.P.(C)No.30171 of 2021 is a writ petition filed by the Kerala Medical Services Corporation Limited and one of its officers challenging Ext.P5 order issued by the 1[st] respondent under the provisions of the Section 21 of the Kerala Headload workers Act 1978 (hereinafter referred to as ‘the Act’)and Ext.P13 order through which the 2[nd] respondent upheld Ext.P5 order of the 1[st] respondent. W.P.(C)No.19659 of 2020 has been filed by the contesting respondents in W.P.(C)No.30171 of 2021 seeking implementation of the order of the 1[st] respondent (Ext.P5 in W.P.(C)No.30171 of 2021). 2. Sri.M.Ajay, the learned counsel appearing for the petitioners in W.P.(C)No.30171 of 2021 would submit that the provisions contained in Section 21 of the Act contemplate a specific procedure for settlement of disputes. It is submitted that in the present case, the conciliation contemplated at the level of the Assistant Labour Officer under Section 21 (1) of the Act was not resorted to and the only conciliation attempted was at the hands of the 1[st] respondent, who finally issued Ext.P5 award. It is submitted that the question as to whether such a WP(C) NOS. 19659 OF 2020 AND 30171 OF 2021 6 procedure could be legal was considered by this Court in Secretary, Kozhikode District Headload Workers Union (CITU) and Others v. Appellate Authority under the Kerala Headload Workers Act, 1978, Deputy Labour Commissioner and Others [2018 (2) KLT 1004], where it was held that in the absence of the procedure contemplated by Section 21 of the Act being followed in its entirety, the awards issued by the competent authority would be bad and unsustainable in law. It is also submitted that though at first blush the rate of enhancement may sound reasonable, the financial impact of such enhancement is huge. It is submitted that the party respondents are actually receiving amounts much higher than those employed in other warehouses of the petitioner Corporation, as can be seen from Ext.P4. It is also pointed out while the Assistant Manager of the warehouse is being paid Rs.22,400/per month, the contesting respondents were receiving approximately Rs.41,000/- a month for work on alternate days. 3. Sri.Arjun Raghavan, the learned counsel appearing for the contesting respondents in W.P.(C)No.30171 of 2021 [the petitioners in the connected writ petition, namely W.P. (C)No.19659 of 2020] would submit that there is absolutely no WP(C) NOS. 19659 OF 2020 AND 30171 OF 2021 7 merit in the contentions taken by the learned counsel for the petitioners in W.P.(C)No.30171 of 2021. It is submitted that the contention that there was failure to follow the procedure contemplated by Section 21 of the Act is absolutely incorrect. It is submitted that Ext.P5 award was issued after several rounds of conciliation and even assuming that the contention of the learned counsel for the petitioners that there was no conciliation at the level of the Assistant Labour Officer is accepted, the same does not vitiate Ext.P5 order. It is submitted that there is substantial compliance with the provisions of Section 21 of the Act and even if the contention of the learned counsel is accepted, the order need not be set aside. It is submitted that the enhancement now found due to the contesting respondents is not substantial as contented. It is submitted that the contesting respondents are legally entitled to the benefit of Exts.P5 and P13 and no ground has been made out for interference under Article 226 of the Constitution of India. 4. Having heard the learned counsel appearing for the parties, I am of the view that W.P.(C)No.30171 of 2021 is liable to be allowed on a short ground. In Secretary, Kozhikode WP(C) NOS. 19659 OF 2020 AND 30171 OF 2021 8 ## District Headload Workers Union (CITU) (supra), this Court held as follows:- “In terms of the provisions contained in S.21 of the Act, an adjudication of the dispute by the Conciliation Officer under sub-section (4) of S.21 of the Act is contemplated only if the dispute cannot be resolved otherwise than by the two rounds of conciliation provided for under subsections (1) and (2) of S.21 of the Act. The object behind the said statutory scheme is that conciliation being a more effective mechanism for resolving the disputes of the nature contemplated in the Statute, the same has to be preferred over adjudication of disputes. Insofar as it is found that the second respondent has passed Ext.P5 order without complying with the mandatory statutory provision contained in sub-sections (1) and (2) of S.21 of the Act, Exts.P5 and P7 orders are unsustainable.” ## Therefore, on the short ground that the procedure contemplated by Section 21 of the Act was not fully complied with before WP(C) NOS. 19659 OF 2020 AND 30171 OF 2021 9 issuing Ext.P5 award, Ext.P5 is liable to the set aside. For the same reason, the appellate order is also liable to be set aside. Accordingly W.P.(C)No.30171 of 2021 is allowed. Exts.P5 and P13 are quashed. The claim raised by the respondents 4 to 7 in W.P.(C)No.30171 of 2021 shall be considered in accordance with the law, after following the procedure contemplated by Section 21 of the Act. The contentions taken by both sides are left open to be raised before the competent authority in the proceedings to be initiated. The proceedings as directed above shall be completed without undue delay and at any rate, within a period of six months from the date of receipt of a certified copy of this judgment. W.P.(C)No.19659 of 2020 is thus closed, leaving open all contentions taken by the petitioners in that case. Sd/GOPINATH P. JUDGE DK WP(C) NOS. 19659 OF 2020 AND 30171 OF 2021 ## 10 ## **`APPENDIX OF WP(C) 30171/2021`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1 A TRUE COPY OF THE ORDER IN HWA 3/2013 ISSUED BY THE SECOND RESPONDENT DATED 14.10.15.` - `Exhibit P2 A TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE THIRD RESPONDENT TO THE SECOND PETITIONER DATED 1.6.17.` - `Exhibit P3 A TRUE COPY OF THE AGREEMENT BETWEEN THE SECOND PETITIONER AND REPRESENTATIVES OF ALL HEADLOAD WORKERS UNIONS DATED 11.3.16.` - `Exhibit P4 A TRUE COPY OF THE LIST OF UNLOADING CHARGES BEING PAID BY THE KMSCL IN ALL THE DDWS AND OTHER STORAGE FACILITIES ACROSS THE STATE DATED 31.7.17.` - `Exhibit P5 A TRUE COPY OF THE ORDER NO.IR(1)2444/2017 ISSUED BY THE FIRST RESPONDENT DATED 22.11.17.` - `Exhibit P6 A TRUE COPY OF THE APPEAL MEMORANDUM HWA 1/18 PREFERRED BY THE FIRST PETITIONER THROUGH THE SECOND PETITIONER BEFORE THE SECOND RESPONDENT DATED 19.1.18.` - `Exhibit P7 A TRUE COPY OF THE OBJECTION FILED BY THE THIRD RESPONDENT DATED 20.3.18.` - `Exhibit P8 A TRUE COPY OF THE DETAILS OF LOADING AND UNLOADING CHARGES TO THE FOURTH RESPONDENT FOR THE PERIOD APRIL, 2017 TO DECEMBER, 2017.` - `Exhibit P9 A TRUE COPY OF THE DETAILS OF LOADING AND UNLOADING CHARGES TO THE FIFTH RESPONDENT FOR THE PERIOD APRIL, 2017 TO DECEMBER 2017.` WP(C) NOS. 19659 OF 2020 AND 30171 OF 2021 11 - `Exhibit P10 A TRUE COPY OF THE DETAILS OF LOADING AND UNLOADING CHARGES TO THE SIXTH RESPONDENT FOR THE PERIOD APRIL, 2017 TO DECEMBER, 2017.` - `Exhibit P11 A TRUE COPY OF THE DETAILS OF LOADING AND UNLOADING CHARGES TO THE SEVENTH RESPONDENT FOR THE PERIOD APRIL, 2017 TO DECEMBER, 2017.` - `Exhibit P12 A TRUE COPY OF THE NOTES OF ARGUMENTS FILED BY THE COUNSEL FOR THE PETITIONERS DATED 14.3.19.` - `Exhibit P13 A TRUE COPY OF THE ORDER OF THE SECOND RESPONDENT IN HWA 1/18 DATED 29.4.19.` - `Exhibit P14 A TRUE COPY OF THE ORDER NO.IR (1) 1308/2018 ISSUED BY THE FIRST RESPONDENT DATED 2.11.18.` - `RESPONDENT EXHIBITS` - `Exhibit-R4(a) A TRUE COPY OF IDENTITY CARD ISSUED TO THE 4TH RESPONDENT UNDER RULE 26 A OF THE KERALA HEAD LOAD WORKERS RULES` - `Exhibit-R4(b) A TRUE COPY OF IDENTITY CARD ISSUED TO THE 5TH RESPONDENT UNDER RULE 26 A OF THE KERALA HEAD LOAD WORKERS RULES` - `Exhibit-R4(c) A TRUE COPY OF IDENTITY CARD ISSUED TO THE 6TH RESPONDENT UNDER RULE 26 A OF THE KERALA HEAD LOAD WORKERS RULES` - `Exhibit-R4(d) A TRUE COPY OF IDENTITY CARD ISSUED TO THE 7TH RESPONDENT UNDER RULE 26 A OF THE KERALA HEAD LOAD WORKERS RULES` - `Exhibit-R4(e) A TRUE COPY OF THE SETTLEMENT MEMORANDUM DATED 09-01-20I3` - `Exhibit-R4(f) A TRUE COPY OF THE ORDER DATED 01-122015 ISSUED BY GENERAL MANAGER OF THE 1ST PETITIONER TO THE 2ND PETITIONER` WP(C) NOS. 19659 OF 2020 AND 30171 OF 2021 12 ``` Exhibit-R4(g)A TRUE COPY OF COMMUNICATION DATED 31-10-2022 ISSUED BY THE 1ST PETITIONER TO THE 2ND RESPONDENT ``` WP(C) NOS. 19659 OF 2020 AND 30171 OF 2021 ## 13 ## **`APPENDIX OF WP(C) 19659/2020`** ``` PETITIONER EXHIBITS ``` - `EXHIBIT P1 A TRUE COPY OF THE IDENTITY CARD ISSUED TO THE 1ST PETITIONER UNDER RULE 26 OF THE HEAD LOAD WORKERS ACT.` - `EXHIBIT P2 A TRUE COPY OF THE IDENTITY CARD ISSUED TO THE 2ND PETITIONER, UNDER RULE 26 OF THE HEAD LOAD WORKERS ACT.` - `EXHIBIT P3 A TRUE COPY OF THE IDENTITY CARD ISSUED TO THE 3RD PETITIONER UNDER RULE 26 OF THE HEAD LOAD WORKERS ACT.` - `EXHIBIT P4 A TRUE COPY OF THE IDENTITY CARD ISSUED TO THE 4TH PETITIONER UNDER RULE 26 OF THE HEAD LOAD WORKERS ACT.` - `EXHIBIT P5 A TRUE COPY OF THE ORDER NO.KMSCL/141/2012/ADMN DATED 01.12.2015 ISSUED BY THE GENERAL MANAGER OF THE 1ST RESPONDENT.` - `EXHIBIT P6 A TRUE COPY OF THE ORDER NO.IR(1)2444/2017 DATED 22.11.2017 ISSUED BY THE 4TH RESPONDENT.` - `EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 29.04.2019 IN HWA-01/2018 OF THE 5TH RESPONDENT.` - `EXHIBIT P8 A TRUE COPY OF THE REPRESENTATION DATED 31.12.2019 FILED BY THE SECRETARY OF THE UNION BEFORE THE 3RD RESPONDENT.` - `EXHIBIT P9 A TRUE COPY OF THE LETTER BEARING NO.09/2020/WHKKD DATED 01.01.2020 OF THE 3RD RESPONDENT.`