SUT Hospital, Pattom v. General Secretary, Kerala State Pvt & Co-op Hospital Employees Association (INTUC)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945 WP(C) NO. 26048 OF 2021 ``` ``` PETITIONER: ``` ``` S U T HOSPITAL, PATTOM THIRUVANANTHAPURAM - 695 004, REPRESENTED BY ITS CHIEF LIAISON OFFICER M.RADHAKRISHNAN NAIR. ``` ``` BY ADVS. P.RAMAKRISHNAN PREETHI RAMAKRISHNAN (P-212) T.C.KRISHNA C.ANIL KUMAR ASHA K.SHENOY PRATAP ABRAHAM VARGHESE ``` ## **`RESPONDENT:`** ``` GENERAL SECRETARY, KERALA STATE PVT & CO-OP HOSPITAL EMPLOYEES ASSOCIATION (INTUC), MOHAN NIVAS, ABHAYA NAGAR II, PEROORKADA, THIRUVANANTHAPURAM - 695 005. ``` ``` BY ADV GOPAKUMAR R.THALIYAL ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.26048 OF 2021 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner, a company established under the Companies Act has filed this writ petition challenging Ext.P9 preliminary award passed by the Labour Court, Kollam. 2. The petitioner had initiated disciplinary action against two employees alleging misconduct and pursuant to Exts.P3 and P4 enquiry reports, terminated their service. 3. The respondent Union raised an industrial dispute and the Government referred the matter to the Labour Court under Section 10 (1) (c) of the Industrial Disputes Act, 1947. The Labour Court as per Ext.P9 preliminary award found that the enquiry has been conducted without following the proper procedure and there was lack of evidence to arrive at the findings by the enquiry officer. Challenging Ext.P9 preliminary award, the writ petition is preferred. It is contended ``` WP(C).No.26048 OF 2021 ``` ``` 3 ``` that the Labour Court travelled beyond its powers to find that the findings are not based on evidence. 4. The Supreme Court in **Cooper Engineering Ltd v. P. P. Mundhe [AIR 1975 SC 1900: 1975 (2) SCC 661]** cautioned against stalling the proceedings before the Labour Court on a finding recorded on a preliminary issue. The Court observed thus:- “...We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication.” 5. In **S.K. Verma v. Mahesh Chandra [1983 (4) SCC 214 : AIR 1984 SC 1462]** and in **D.P. Maheshwari v. Delhi Administration [1983 (4) SCC 293: AIR 1984 SC 153],** the Apex Court observed that all issues whether preliminary or otherwise should be decided together and even if a ``` WP(C).No.26048 OF 2021 ``` ``` 4 ``` decision is rendered on preliminary issue, the Courts shall not intervene at the interlocutory stage under Article 226 of the Constitution. 6. Relying on the decisions of the Apex Court in **Cooper Engineering Ltd, S.K. Verma and D.P. Maheshwari** (supra), this Court, in **Kerala State Electricity Board v. Rajamoni [1992 (2) KLT 66],** held that the High Court shall not interfere with preliminary orders of the Labour Court and observed thus: “4. If the petitioners are aggrieved against the final award, they have adequate remedy at that stage. If opportunity has not been given to the petitioners to give evidence or if the Tribunal proceeded in violation of the principles of natural justice, the award can be challenged at that stage. If the award is in favour of the petitioners, the petitioners cannot be aggrieved and, therefore, there is no ground for staying the further proceedings, in any case, at this stage in this Original Petition. A speedy disposal of the industrial dispute is the prime requisite and this court will not be instrumental in stalling the proceedings and arresting final adjudication on the merit. Without prejudice to the petitioners' right to raise all the grounds raised in this petition if they are aggrieved at a later stage.” ``` WP(C).No.26048 OF 2021 ``` ``` 5 ``` 7. This Court in **Kerala Chemicals and Proteins Ltd. v. Labour Court, Ernakulam [2014 (4) KHC 107 : 2014 (4) KLT SN 8: ILR 2014 (4) Ker. 585]** considered the scope of interference by High Court with preliminary orders of Labour Court and after referring to the decisions in **S.K. Verma, D.P. Maheshwari and Rajamoni** (supra), held that this Court should not interfere with preliminary orders of the Labour Court, since such orders are capable of being challenged along with the final order that is to be passed by the Labour Court after adjudication of the dispute. 8. In **Amrita Institute of Medical Sciences (AIMS) v. Labour Court [2017 (5) KHC: 2017 (4) KLT 1040],** this Court, referring to the decisions in **Cooper Engineering Ltd and D.P. Maheshwari** (supra) observed that, the rationale for the decision in **D.P. Maheshwari** (supra), that the High Court in exercise of jurisdiction under Article 226 of the ``` WP(C).No.26048 OF 2021 ``` ``` 6 ``` Constitution should not stop proceedings before the Industrial Tribunal so that a preliminary issue may be decided by them, appears to be the finding that neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of the Supreme Court under Article 136 should be allowed to be exploited by those who can well afford to wait, to the detriment of those who can ill afford to wait, by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding a decision on issues more vital to them. 9. The Division Bench of this Court in **Chelamattom Sree Krishna Swami Devaswom Trust v. State of Kerala and Others** [2022 (4) KHC 215] has held that a writ petition challenging the preliminary order of the Labour Court cannot normally be interfered with and the parties are to be relegated to the Labour Court for culmination of proceedings before the Court and with liberty to challenge the ``` WP(C).No.26048 OF 2021 ``` ``` 7 ``` preliminary order, if required, along with the final award. 10. This Court in **President, Kunnampetta Ksheera Vyavasaya Sahakarana Sangham v. P. Madhavan Nair and Others** [2014 (4) KHC 258] has taken the view that the dispute as to whether the employee is a workman or not need not be decided as a preliminary issue in all cases and that the same can be decided based on evidence. In the light of the dictum laid down by the Apex Court and this Court in the aforesaid decisions, I am not inclined to entertain the challenge against the preliminary award and the writ petition is dismissed leaving open the right of the petitioner to challenge the final award of the Labour Court, if aggrieved. ## **Sd/-** ## **`MURALI PURUSHOTHAMAN JUDGE`** SPR ``` WP(C).No.26048 OF 2021 ``` ``` 8 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF THE CHARGE MEMO DATED 16.09.2013 ISSUED BY THE PETITIONER TO SRI.R.JAYACHANDRAN. ``` ``` EXHIBIT P2TRUE COPY OF THE CHARGE MEMO DATED 19.10.2013 ISSUED BY THE PETITIONER TO SRI.SHAJI. ``` - **`EXHIBIT P3 TRUE COPY OF THE ENQUIRY REPORT DATED 28.11.2013 OF THE ENQUIRY OFFICER WITH RESPECT TO THE ENQUIRY CONDUCTED AGAINST SRI.R.JAYACHANDRAN.`** - **`EXHIBIT P4 TRUE COPY OF THE ENQUIRY REPORT DATED 17.02.2014 OF THE ENQUIRY OFFICER WITH RESPECT TO THE ENQUIRY CONDUCTED AGAINST SRI.R.SHAJI,`** - **`EXHIBIT P5 TRUE COPY OF THE CLAIM STATEMENT DATED 24.05.2016 FILED IN ID NO.55/2015 BY THE RESPONDENT BEFORE THE LABOUR COURT, KOLLAM.`** - **`EXHIBIT P6 TRUE COPY OF THE WRITTEN STATEMENT DATED 30.08.2018 FILED BY THE PETITIONER IN ID NO.55/2015.`** - **`EXHIBIT P7 TRUE COPY OF THE PRELIMINARY AWARD DATED 30.01.2020 PASSED BY THE LABOUR COURT, KOLLAM IN ID NO.55/2015.`** - **`EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 14.01.2021 IN WA NO.1152/2020.`** - **`EXHIBIT P9 TRUE COPY OF PRELIMINARY AWARD DATED 01.09.2021 IN ID NO.55/2015 PASSED BY THE LABOUR COURT, KOLLAM.`** ## **`RESPONDENTS EXHIBITS: NIL.`**