The Superintendent, Government Women and Children Hospital, G.H. Road, Kozhikode & The Secretary, Hospital Development Committee, Government Women and Children Hospital, G.H. Road, Kozhikode v Labour Court, Kozhikode & P. Mohanan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **TUESDAY, THE 12[TH] DAY OF OCTOBER 2021 / 20TH ASWINA, 1943** ## **WP(C) NO. 15477 OF 2012** ## **PETITIONERS:** - **1 THE SUPERINTENDENT,GOVERNMENT WOMEN AND CHILDREN HOSPITAL G.H.ROAD, KOZHIKODE.** **2 THE SECRETARY HOSPITAL DEVELOPMENT COMMITTEE, GOVERNMENT WOMEN AND CHILDREN HOSPITAL, G.H.ROAD, KOZHIKODE.** **BY ADVS. SRI.E.K.NANDAKUMAR (SR.) SRI.P.BENNY THOMAS SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH MENON SRI.K.JOHN MATHAI** ## **RESPONDENTS:** - **1 THE LABOUR COURT, KOZHIKODE CIVIL STATION, B-BLOCK, KOZHIKODE-673020.** - **2 P.MOHANAN S/O.MOOTHORAN, EDACHERITHAZHATHU, PARANNOOR VEEDU, P.O.CIVIL STATION, KOZHIKODE-673020.** **SRI.M.P.PRAKASH SMT.K.RAJANI SRI.THOMAS ANTONY SRI.K.M.FAISAL- G.P** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.09.2021 THE COURT ON 12.10.2021 DELIVERED THE FOLLOWING:** W.P.(C) 15477/2012 2 ## **JUDGMENT** The question that arises for consideration in this writ petition is whether the preliminary order of the Labour Court can be interfered with, in a proceedings under Article 226 of the Constitution of India. 2. The Management in I.D. No.8/2009 on the file of the Labour Court, Kozhikode has filed this Writ Petition challenging Ext. P7 preliminary order holding that the Hospital Development Committee, Government Women and Children Hospital, G.H. Road, Kozhikode is an industry as per Section 2 (j) of the Industrial Disputes Act, 1947 ('I.D. Act' for short) and the Labour Court has jurisdiction to adjudicate the reference. 3. The Government, _vide_ Ext.P3 order dated 26-08-2009, referred the following issue for adjudication of the Labour Court: “Whether the denial of employment of Sri. P. Mohanan, Security Staff of Government Women and Children Hospital, Calicut by the Secretary, Hospital Development Committee is justifiable? If not, what relief he is entitled to get?” W.P.(C) 15477/2012 3 4. The management filed Ext.P6 interlocutory application before the Labour Court to hear and decide the question of maintainability of the dispute before proceeding further in the matter. It was contended that the Hospital Development Committee of the Government Hospital will not come under the purview of 'industry' as per Section 2(j) of the I.D. Act. Relying on the Division Bench judgment of this Court in W.A. Nos.20/2004 and 1600/2004 holding that hostels attached to medical colleges and hospitals are not 'industry' and employees of mess of the hostel canteen are not 'workmen', it was contended that the Hospital Development Committee of the Government Hospital is not an industry. 5. The Labour Court, relying on the decision of the Apex Court in _**v**_ **Bangalore Water Supply and Sewage Board A. Rajappa (AIR 1978 SC 548)** , held that, systematic activities are being done by the Hospital Development Committee for the better administration of hospital and there is employer-employee relationship between the Hospital Development Committee and their staff members and that they are rendering services to the public at large after receiving fees and W.P.(C) 15477/2012 4 charges. Accordingly, the Labour Court held that the Hospital Development Committee is an industry, and it would come within the purview of Section 2(j) of the I.D. Act. With regard to the contention based on the judgment that hostels attached to medical colleges and hospitals are not 'industry', Labour Court found that the functions/services of the Hospital Development Committee and that of hostels attached to medical colleges and hospitals cannot be equated, since in the case of Hospital Development Committee, the establishment has been authorized to collect fees or charges from the public at large for rendering various services to them, whereas in the case of hostel attached to the Government Medical College, the establishment is not authorized to collect fee or charges from the public, and no service is rendered by the hostel to the members of public. The actual expense for providing food articles and other essential items to the inmates (students) will be collected as hostel charges or mess charges and therefore, a hostel attached to the college may not be an industry under Section 2(j) of the I.D. Act, whereas, a Hospital Development W.P.(C) 15477/2012 5 Committee would come within the parameters of an industry as defined in the I.D. Act. Accordingly, the impugned preliminary order was passed by the Labour Court holding that the Hospital Development Committee of the Women and Children Hospital, Kozhikode is an industry, and the dispute that arose between the management of the Hospital Development Committee and the workman is an industrial dispute within the meaning of Section 2(k) of the I.D. Act and the Labour Court is having jurisdiction to adjudicate the reference. However, the Labour Court observed that the industrial dispute will be disposed of on merit untrammeled by the observations in the said order. 6. Ext.P7 preliminary order is challenged by the Management contending that the same is erroneous. It is the case of the Management that the Committee was formed for the purpose of monitoring the functions of the Government hospitals and as the running of Government hospitals is a sovereign function, Government hospital is not an 'industry' and the employees engaged in the hospital are not 'workmen' under the I.D. Act. It is also contended that the Labour Court W.P.(C) 15477/2012 6 went wrong in drawing a distinction between the case of Hospital Development Committee and hostels attached to medical colleges and hospitals and that collection of a nominal fee by issuing gate passes is no reason to hold that the Committee is an industry. 7. Heard senior counsel Sri. E. K. Nandakumar for the petitioners and Sri. M.P. Prakash, the learned counsel for the 2[nd] respondent. 8. Senior counsel Sri. E. K. Nandakumar took me through the provisions of the I.D. Act, the decisions of the Apex Court in **Physical Research Laboratory** _**v**_ **. K.G. Sharma (1997) 4 SCC 257, Management of SOM Vihar Apartment Owners Housing** _**v**_ **Maintenance Society, Ltd . Workmen c/o Indian Engineering and General Mazdoor 2001 (3) L.L.N 815** , the decision of Karnataka High Court in **B. Vijayakumari Pillai** _**v**_ **. Management of Indian Institute of Science 2012-III- LLJ-627 (Kant)** and the decision of the High Court of Allahabad in **Arun Vihar Residents welfare Association G.B. Nagar** _**v**_ **. State of U.P and others 2020 I CLR 213** to canvass the position that the Hospital Development Committee is not an 'industry'. W.P.(C) 15477/2012 7 The senior counsel also relied on the judgment of this Court dated _v_ . 04.11.2008 in O.P. No.7464/2002 (The Trivandrum Medical College Regional Provident Fund Commissioner) to contend that Hospital Development Committees are not covered under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and on the same reasoning, it is not an industry under the I.D. Act. Finally, the learned senior counsel relied on the judgment in W.A. Nos.20/2004 and 1600/2004, wherein, this Court held that hostels attached to Government Medical Colleges are not industry under the I.D. Act, for canvasing the position that the principles laid down therein will squarely apply to decide whether Hospital Development Committee is an industry. 9. Per contra, Sri. M.P. Prakash, the learned counsel for the second respondent would contend that, Ext.P7 is only a preliminary order and this Court shall not interfere with such orders. Sri. Prakash submits that this Court in judgment dated 13.01.2012 in W.P. (C) No.562 of 2005, while considering the challenge against the award of Industrial Tribunal, W.P.(C) 15477/2012 8 Kozhikode annulling the termination of a security guard under the Hospital Development Society has rejected the very same contentions raised by the Management in this Writ Petition and has upheld the award of the Labour Court finding the Hospital Development Society as an industry. The counsel took me through paragraph 3 of the said judgment which reads as under: _“3. I have perused the award of the Labour Court and find that the Labour Court has met each of the contentions of the management. The contention that the petitioner is not an industry and discharging sovereign function was rightly found by the Industrial Tribunal to be too flimsy to accept. The Society is a body constituted for the smooth administration of the Government Hospitals without causing any financial burden on the State or to put it in another way the society facilitates the speedy repairs and purchase of hospital machinery providing better medical care to the patients coming to the Government Hospitals, which, otherwise requires prior sanction of the Government leading to delay in provision of such facility. The District Collector is the Chairman and the Superintendent of the hospital is the Secretary of the Society and it is not funded by the Government but depends for finance on the entrance fee and other nominal fees received from the patients and the bystanders. The posts under the Society are also not civil posts and it is amply clear that there was no sovereign function entrusted on the society nor can the same said to be a Government Department.”_ It is submitted by Sri. Prakash that the said judgment is not appealed against and has become final. Sri. Prakash also referred to judgment W.P.(C) 15477/2012 9 dated 15.01.2018 in W.P. (c) No. 14529/2006 and connected cases challenging the common award passed by the Industrial Tribunal, Kozhikode in industrial disputes pertaining to wages of security guards under the Hospital Development Society. Senior counsel for the Management would contend that, in the judgment in W.P. (C) No.562 of 2005 cited by Sri. Prakash, the question whether Hospital Development Society is an industry or not, was not seriously contested and the issue was not elaborately dealt with. He also relied on the Division Bench decision of this Court in **St. Thomas Missions Hospital** _**v**_ **. State of Kerala [2007 (2) KLT 415:2007 (1) KHC 583]** to contend that preliminary order of Labour Court can be interfered with in a proceedings under Article 226 of the Constitution. 10. As stated, the Management raised a preliminary question before the Labour Court that, the Hospital Development Committee, Government Women and Children Hospital, G.H. Road, Kozhikode is not an industry as per Section 2 (j) of the I.D. Act and prayed to hear and decide the same before sallying forth to decide the dispute on W.P.(C) 15477/2012 10 merits. The Labour Court considered the preliminary point and came to the conclusion that the Hospital Development Committee is an industry as per Section 2 (j) of the I.D. Act; however, observing that the industrial dispute will be disposed of on merit untrammeled by the observations in the said order. 11. A quarter century back, the Supreme Court in **National** _**v**_ **Council for Cement & Building Materials . State of Haryana and others [1996 (3) SCC 206:1996 KHC 1477],** observed thus: _“2.After the decision of this Court in Bangalore Water Supply & Sewerage Board v. A. Rajappa and Others (1978 (2) SCC 213) in which a comprehensive definition of the word "Industry" was attempted to be given followed by legislative changes in the Industrial Disputes Act, it was thought that the Management or Establishments would give up their old habit of raising preliminary issues in Industrial References as to "whether they are an 'Industry' within the meaning of the Industrial Disputes Act or not", but Samuel Johnson's observation that "one of the maxims of civil law is that definitions are hazardous" is still true and this question continues to be raised almost in every case before the Tribunal._ _3.The appellant is no exception and it has also raised the same question which has brought this industrial litigation, still at its infancy, to this Court.”_ 12. The service of the 2[nd] respondent herein was terminated on ## 31.08.2007 and the dispute was referred for adjudication by Ext. P3 W.P.(C) 15477/2012 11 order dated 26.08.2009. In the order of reference, it is stated that the Labour Court will pass the award within a period of three months. The interlocutory application filed by the Management raising preliminary issue is dated 03.04.2012 and the preliminary order was passed by the Labour Court on 29.05.2012. After 12 years from the date of reference of dispute, the industrial litigation is still at its infancy, the stage of decision on a preliminary question. _**v**_ **. P. P.** 13. The Supreme Court, in **Cooper Engineering Ltd 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.”_ ## 14. In **S.K. Verma** _**v**_ **. Mahesh Chandra [1983 (4) SCC 214:AIR** **1984 SC 1462]** and in **D.P. Maheshwari** _**v**_ **. Delhi Administration** W.P.(C) 15477/2012 12 **[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 decision is rendered on preliminary issue, the Courts shall not intervene at the interlocutory stage under Article 226 of the Constitution. 15. Relying on the decision of the Apex Court in Cooper Engineering Ltd . (supra), 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.”_ W.P.(C) 15477/2012 13 16. 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 (supra), D.P. Maheshwari (spra) and Rajamoni (supra), held that this Court should not interfere with preliminary orders of 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, finally. 17. 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 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 W.P.(C) 15477/2012 14 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. 18. In **Chelamattom Devaswom** _**v**_ **. State of Kerala and others [2020 (1) KHC 880: 2020 (1) KLT 735: 2020 (2) KLJ 490],** relying on the decision in D.P. Maheshwari (supra) held that, in exercise of jurisdiction under Art.226 of the Constitution of India, this Court is not required to be too astute so as to interfere with the exercise of jurisdiction by special Tribunals at interlocutory stages and on preliminary issues. 19. Coming to the decision cited by senior counsel Sri. E. K. Nandakumar in **St. Thomas Missions Hospital** (supra), a Division Bench of this Court in the said case observed that, there should not be any hard and fast rules regarding challenge of preliminary orders in industrial disputes and that the proposition of law laid down by the W.P.(C) 15477/2012 15 Supreme Court is not for universal application without any exception in all cases. Referring to the judgment of this Court in **Dy. General** _**v**_ **Manager, S.B.I. . Roy Samuel [2004 (2) KLT 923: 2004 KHC 690],** the Division Bench held that, in appropriate cases where the Labour Court has on a totally misconceived reasons, set aside an enquiry, the management cannot be asked to wait till the final award is passed to challenge the preliminary order also and in such cases, this Court should certainly interfere at the first stage itself without relegating the management to the circuitous process as held in Dy. General Manager, S.B.I.(supra). The Court on the facts of the said case held that the preliminary order passed by the Labour Court impugned therein was totally perverse, sufficient to invoke the jurisdiction under Article 226 of the Constitution of India. 20. In **Amrita Institute of Medical Sciences** (supra), the Court referring to the Division Bench decision in St. Thomas Missions Hospital (supra) which states that the decision of the Supreme Court in **Cooper Engineering Ltd.** (supra) is not to be treated as a cast iron W.P.(C) 15477/2012 16 proposition to be applied in all cases, observed that, that was a case where the management had already bound itself to the enquiry that was already conducted by them, and had not reserved a right to hold _de novo_ proceedings, in the event of a finding by the Labour Court that the enquiry conducted by it was vitiated in any manner. The Court observed that, the said fact, should serve to distinguish the decision in S **t. Thomas Missions Hospital** (supra) from the decisions of the Supreme Court. 21. In the light of the dictum laid down in the aforesaid decisions and on a consideration of the facts and circumstances of the case and upon scrutiny of the impugned preliminary order, I do not find that this is a fit case where this Court should interfere with the preliminary order passed by the Labour Court. The preliminary order was passed on application made by the Management and after hearing them and the order does contain reasons for its conclusion. The Labour Court has acted well within jurisdiction and the finding so arrived at cannot be said to be perverse or irrational, warranting interference in exercise of W.P.(C) 15477/2012 17 the writ jurisdiction of this Court under Art.226 of the Constitution of India. The Management could very well challenge Ext.P7 preliminary order along with the final award. Further, in Ext.P7 order, the Labour Court has observed that the industrial dispute will be disposed of on merit untrammeled by the observations in the said order. Accordingly, the Writ Petition is dismissed leaving open the right of the petitioners to challenge the final award of the Labour Court, if aggrieved. The Labour Court shall decide the dispute, untrammeled by the observations in Ext.P7 preliminary order. I make it clear that this Court has not considered the merits of the preliminary issue or the dispute in I.D. No.8/2009. Since the matter has been pending before this Court for almost a decade, the parties are directed to appear before the Labour Court, Kozhikode on 02.11.2021 and within three months therefrom, the Labour Court shall decide the dispute. There will be no order as to costs. Sd/- ## **MURALI PURUSHOTHAMAN JUDGE** W.P.(C) 15477/2012 18 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **P1:TRUE COPY OF G.O(MS)NO.26/83/HD DATED 29.01.1983 CONTAINING RULES AND PROCEDURES RELATING TO CONSTITUTION AND WORKING OF THE COMMITTEES AND NOTIFICATIONS ISSUED BY THE GOVERNMENT FROM TIME TO TIME REVISING THE RULES.** - **P2:TRUE COPY OF THE COMPLAINT DATED 20.09.2007 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE LABOUR OFFICER.** - **P3:TRUE COPY OF THE ORDER OF REFERENCE DATED 26.8.2009 PASSED BY THE GOVERNMENT.** - **P4:TRUE COPY OF THE COUNTER STATEMENT DATED 12.4.2010 FILED BY THE 1ST PETITIONER, IN I.D.NO.8/2009.** - **P5:TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 2ND PETITIONER, IN I.D.NO.8/2009.** - **P6:TRUE COPY OF THE INTERIM APPLICATION DATED 3.4.2012 NUMBERED AS I.A.12/2012 IN I.D.NO.8/2009.** - **P7:TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT DATED 29.5.2012 IN I.A.NO.12/2012 IN I.D.NO.8/2009** ## **spc/**