High Court of KeralaSingle Judge2023-04-25Writ petitions dismissed; No costs.

WP(C) Nos. 18213 of 2005 & 17374 of 2005 (Petitioners: President Kozhikode Jilla Private Hospital and Medical, Shop Workers Union, CITU; The General Secretary Private Hospital and Medical Shop Workers Union, CITU) v. 1) Manager National Hospital, Kozhikode; 2) Labour Court Kozhikode; 3) Managing Director Mavoor Road, Kozhikode; 4) Labour Court Kozhikode

Case / Petition Number:WP(C) Nos. 18213 of 2005 & 17374 of 2005

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.MUHAMED MUSTAQUE
Judgment Date: 2023-04-25
Court Decision / Holding: Writ petitions fail; dismissed. No costs.
Final Disposition: Writ petitions dismissed; No costs.

Parties to the Case

Appellants / Petitioners

President Kozhikode Jilla Private Hospital and Medical, Shop Workers Union, CITU
The General Secretary Private Hospital and Medical Shop Workers Union, CITU

Respondents

Manager National Hospital, Kozhikode
The Labour Court Kozhikode
Managing Director Mavoor Road, Kozhikode

Legal Representation & Advocates

Counsels for Petitioners

• Sri N. Raghuraj
• Smt. K. Amminikutty

Counsels for Respondents

• Sri M. Asokan
• Sri Devaprasanthh.P.J.
• Sunil Kumar KuriaKose GP

Case Synopsis & Summary

The petitions challenge an award of the Labour Court, Kozhikode, which held that the workers engaged by the National Hospital, Kozhikode, were not in an employer–employee relationship because they were engaged through a labour society (an agency/contractor). The unions contend that no credible evidence was produced to prove engagement through the society and that muster rolls and relevant records were withheld from the Labour Court. The Management relies on a line of authorities, including a Supreme Court decision, and argues that judicial review under Article 226 is permissible only for glaring errors and that the Labour Court’s factual findings should not be easily disturbed. The court recalls that the key issue is genuine control and supervision over the workers rather than mere existence of a contracting society. It notes the absence of regular service evidence and the 11‑month agreement pattern, which could imply direct employment by the management after the period. The court ultimately agrees that no perversity is shown in the Labour Court’s appreciation of evidence and declines to intervene, holding that the writ petitions fail. The petitions are dismissed with no costs.

Provisions of Law Cited

Article 226, Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submitted that there was no credible evidence showing workers were engaged through the recognised labour society, and that Muster Rolls and other relevant records were withheld before the Labour Court. They argued that mere existence of a contractor‑society cannot decide the nature of the relationship where the entire control and supervision over the workers rested with the hospital management. They pointed to the lack of regular service evidence and to the 11‑month agreement, suggesting that after the period the hospital would directly employ the workers. Relying on Kerala State Coir Corporation Ltd. v. Industrial Tribunal and Hussainbhai v. Alath Factory Tozhilali Union, they contended that when it is established that the management is the real employer, the contract with a society has no decisive weight. They urged that the Labour Court failed to properly assess the customary nature of engagement and failed to appreciate the true nature of control exercised by the management.

Contentions of Respondents

The respondents contended that judicial review should not disturb findings of the Labour Court unless there is a fundamental error. Relying on Iswarlal Mohanlal Thakkar v. Paschim Gujarat Vij Company Ltd., they argued that relief under Article 226 is permissible only for glaring errors and that the Labour Court’s findings on the relationship between the workers and the management were sound given the evidence, including the absence of regular service and the contractual arrangement with the labour society. They asserted that mere existence of a contract with a society does not negate pervasive control by the management, and the award properly concluded there was no employer–employee relationship.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Iswarlal Mohanlal Thakkar v. Paschim Gujarat Vij Company Ltd. And Another	[2014 KHC 4270]	Positive	Cited to support the proposition that judicial review under Article 226 is limited and should not upset the Labour Court’s factual findings, aligning with the court’s ultimate decision not to interfere.
Kerala State Coir Corporation Ltd. v. Industrial Tribunal	[1995 (1) KLT 272]	Mentioned Only	Petitioners relied on this authority to argue that the management’s real employer status could prevail; however, the current court did not adopt this line of reasoning as controlling for the present facts.
Hussainbhai v. Alath Factory Tozhilali Union	[1978 KHC 625]	Mentioned Only	Cited by petitioners to support the idea that the management being the real employer affects the employer–employee relationship; the court did not adopt this argument as decisive in the present case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE TUESDAY, THE 25[TH] DAY OF APRIL 2023 / 5TH VAISAKHA, 1945 WP(C) NO. 18213 OF 2005** ## **PETITIONER:** PRESIDENT KOZHIKODE JILLA PRIVATE HOSPITAL AND MEDICAL, SHOP WORKERS UNION, CITU, REG.NO.176/89,, CITU JILLA CENTRE 6/638, YMCA CROSS ROAD,, KOZHIKDOE 673 001. BY ADVS. SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY ## **RESPONDENTS:** 1 MANAGER NATIONAL HOSPITAL,, MAVOOR ROAD, KOZHIKODE. 2 THE LABOUR COURT KOZHIKODE. BY ADVS. SRI.M.ASOKAN SRI.DEVAPRASANTH.P.J. ADV. SUNIL KUMAR KURIAKOSE GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.04.2023, ALONG WITH WP(C).17374/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **WP(C) NOS. 18213 OF 2005 & 17374 OF 2005** **==> picture [37 x 9] intentionally omitted <==** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE TUESDAY, THE 25[TH] DAY OF APRIL 2023 / 5TH VAISAKHA, 1945 WP(C) NO. 17374 OF 2005** ## **PETITIONER:** THE GENERAL SECRETARY PRIVATE HOSPITAL AND MEDICAL SHOP WORKERS UNION, CITU, REG.NO.176/89, CITU JILLA CENTRE 6/638, YMCA, CROSS ROAD, KOZHIKODE 673 001. BY ADV SRI.N.RAGHURAJ ## **RESPONDENTS:** 1 THE MANAGING DIRECTOR MAVOOR ROAD, KOZHIKODE. 2 THE LABOUR COURT KOZHIKODE. BY ADVS. SRI.M.ASOKAN SRI.DEVAPRASANTH.P.J. ADV. SUNIL KUMAR KURIAKOSE GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.04.2023, ALONG WITH WP(C).18213/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NOS. 18213 OF 2005 & 17374 OF 2005** **==> picture [37 x 9] intentionally omitted <==** ## **J U D G M E N T** These writ petitions have been preferred by a workmen's union, challenging the award of the Labour Court, Kozhikode. Their members have been engaged by the National Hospital, Kozhikode. They were denied employment. The dispute was referred to the Labour Court, Kozhikode for adjudication. The Labour Court accepted the stand of the management that these workers were engaged through a labour society and there was no employer-employee relationship between the management and the workmen. Challenging these award, the Union preferred these writ petitions. 2. The learned counsel for the Union would submit that absolutely no evidence was adduced by the management to show that these workers were engaged through society. It is submitted that Muster Roll and other relevant records were ## **WP(C) NOS. 18213 OF 2005 & 17374 OF 2005** **==> picture [37 x 8] intentionally omitted <==** withheld from production before the Labour Court. 3. _Per contra_ , the learned counsel for the management, placing reliance on the judgment of the Apex Court in **Iswarlal Mohanlal Thakkar v.** **Paschim Gujarat VIJ Company Ltd. And Another** **[2014 KHC 4270]** submits that judicial review is warranted if there is glaring error committed by the Labour Court. The Court cannot upset the fact findings by invoking power of judicial review under Article 226 of the Constitution of India. 4. The learned counsel for the petitioner in these cases, placed reliance on the judgment of this Court in **Kerala State Coir Corporation** **Ltd. v. Industrial Tribunal [1995 (1) KLT 272]** and the Apex Court in **Hussainbhai v. Alath Factory Tozhilali Union [1978 KHC 625]** , would argue that when it is established engagement of workmen and the management is the real employer; showing a contract between a society and the ## **WP(C) NOS. 18213 OF 2005 & 17374 OF 2005** **..5..** management. It would have no consequence inasmuch as that pervasive control over the worker was rest with the management. It is submitted that the Labour Court ignored the nature of relationship between the workers and the management while deciding the issue. 5. It is true, as rightly pointed out by the learned counsel for the petitioner in these cases that merely pointing out the existence of the society through whom the workers were supplied cannot be decisive factor in deciding the issue like this nature. The question is whether the entire control and supervision of the employee or worker was under the management or employer or not. The Labour Court placed reliance on the testimony of the witnesses to hold that the workers were engaged through contractor to attend the day-to-day works of the hospital according to the exigency. It was also noted that there was no evidence to show the ## **WP(C) NOS. 18213 OF 2005 & 17374 OF 2005** **==> picture [37 x 9] intentionally omitted <==** regular service of each worker. The finding would show that workers were engaged as and when their service is required by the management. 6. The learned counsel for the petitioner in these cases again pointed out the agreement entered into between the management and the society by referring to the period of agreement. According to the learned counsel for the petitioner, the period of agreement was only for 11 months and therefore, it has to be presumed that after the 11 months, these workers were directly engaged by the management. 7. The Labour Court found the lack of evidence for the regular nature of employment of the workers. The evidence clearly would show that the workers were engaged as and when their service is required by the management. In such circumstances, the conclusion has been arrived at by the Labour Court based on the evidence available before the Court. There exists no ## **WP(C) NOS. 18213 OF 2005 & 17374 OF 2005** **==> picture [37 x 8] intentionally omitted <==** perversity in the order appreciating the evidence. The fact findings so rendered cannot be reversed by invoking power under Article 226 of the Constitution of India. Accordingly, both the writ petitions fails, dismissed. No costs. **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** **PR** ## **WP(C) NOS. 18213 OF 2005 & 17374 OF 2005** **..8..** ## **APPENDIX OF WP(C) 18213/2005** PETITIONER EXHIBITS EXHIBIT P1 TRUE PHOTOCOPY OF THE AGREEMENT DATED 08.01.1993 EXHIBIT P2 TRUE PHOTOCOPY OF THE COMMON AWARD IN I.D NO.5/98 AND I.D 40/97 ## **WP(C) NOS. 18213 OF 2005 & 17374 OF 2005** **..9..** ## **APPENDIX OF WP(C) 17374/2005** PETITIONER EXHIBITS EXHIBIT P1 TRUE PHOTOCOPY OF THE ABOVE MENTIONED AGREEMENT DATED 08.01.1993 EXHIBIT P2 TRUE PHOTOCOPY OF THE COMMON AWARD IN I.D NO.5/98 AND I.D 40/97