W.P.(C) Nos. 35768 of 2023 and 39485 of 2023 (Qualified Private Medical Practitioners Association & Indian Medical Association v. State of Kerala and others)

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` FRIDAY, THE 22[ND] DAY OF DECEMBER 2023 / 1ST POUSHA, 1945 ``` ``` W.P.(C) NO.35768 OF 2023 ``` ## `PETITIONER:` ``` QUALIFIED PRIVATE MEDICAL PRACTITIONERS ASSOCIATION, VALLAMATTOM ESTATE, M.G. ROAD, RAVIPURAM, COCHIN, PIN – 682 015, REPRESENTED BY ITS PRESIDENT, DR. ABDUL WAHAB. ``` ``` BY ADVS. SHEJI P.ABRAHAM ABRAHAM JOSEPH(K/003235/2023) ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001 2LABOUR AND REHABILITATION DEPARTMENT, REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001 ``` ``` 3HEALTH AND FAMILY WELFARE (F&W) DEPARTMENT, REPRESENTED BY SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT BUILDING, THIRUVANANTHAPURAM, PIN – 685 036 4LABOUR COMMISSIONER, LABOUR AND SKILLS(E)DEPARTMENT, VIKAS BHAVAN, S.O., THIRUVANANTHAPURAM – 695 033. ``` ``` BY ADVS. SHRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL SABEENA P. ISMAIL, GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.12.2023, ALONG WITH WP(C).39485/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 W.P.(C) No.35768 & 39485 of 2023 ``` THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` FRIDAY, THE 22[ND] DAY OF DECEMBER 2023 / 1ST POUSHA, 1945 ``` **==> picture [160 x 10] intentionally omitted <==** ## `PETITIONER:` ``` INDIAN MEDICAL ASSOCIATION, IMA STATE QUARTERS, ANAYARA P.O., THIRUVANANTHAPURAM, REP. BY ITS SECRETARY DR. SASIDARAN K., PIN – 695 029 BY ADVS. K.ANAND AMEER SALIM ``` ## `RESPONDENTS:` - `1 STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001` - `2 SECRETARY TO GOVERNMENT, LABOUR AND REHABILITATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001` - `3 INDUSTRIAL RELATIONS COMMITTEE, (PRIVATE HOSPITALS), LABOUR COMMISSIONERATE, TOZHIL BHAVAN, PMG JUNCTION, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN, LABOUR COMMISSIONER, PIN – 695 033` - `4 MINIMUM WAGES COMMITTEE, (PRIVATE HOSPITALS) LABOUR COMMISSIONERATE, THOZHIL BHAVAN, PMG JUNCTION, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN, LABOUR COMMISSIONER, PIN – 695 033.` ``` BY ADVS. ``` ``` SABEENA P. ISMAIL, GOVERNMENT PLEADER SHRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.12.2023, ALONG WITH WP(C).35768/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C) No.35768 & 39485 of 2023 ## JUDGMENT _(Dated: 22[nd] December, 2023)_ In both these writ petitions notification No. GO(P) 86/2023/LBR dated 11.10.2023 is under challenge. By the said notification, a committee is constituted under Clause a of sub-Section 1 of Section 5 of the Minimum Wages Act (the Act for short). Therefore, these two writ petitions are heard together, and a common judgment is passed. 2. W.P.(C) No. 35768 of 2023 is taken as the leading case, and the facts in W.P.(C) No. 35768 of 2023 are narrated below: The petitioner is the State Association of Private Hospitals/Clinics and qualified Private Medical Practitioners in the state with more than 3000 members. Exts.P2 to P4 are letters issued by the Government when the fixation of Minimum Wages was taken by the committee/appointed by the Government. In 2018, when the Government fixed Minimum Wages to employees in private hospitals, the notification was challenged by the petitioner in W.P.(C) No.15198 of 2018 before this Court and by judgment dated 23.01.2023, set aside the notification and gave liberty to the Government to reconsider the issue after affording an opportunity of hearing all the affected parties. After passing 4 W.P.(C) No.35768 & 39485 of 2023 Ext.P5 judgment, the Government heard the petitioner and constituted a committee incorporating representatives of the employees, the employer's representatives, and independent persons by issuing Ext.P6 Government order. The grievance of the petitioner is that, while constituting the committee as per Ext.P6, the petitioner association was not included in the committee, thereby they will not be aware of the discussions and developments and the member hospital will not get an opportunity to take up their grievances before the Government or the committee. It was also contended that Sections 5 and 9 of the Minimum Wages Act were not followed while the committee was constituted by Ext.P6 as there are no independent members in the committee. Therefore, the petitioners seek to quash Ext.P6 Government Order and for a direction to respondents 1 and 2 to constitute the minimum wages/revision committee by incorporating the petitioner as one of the employers’ representatives in the committee. 3. A counter affidavit is filed on behalf of 1[st] and 2[nd] respondents. The first and foremost contention raised is that the petitioner association has no _locus standi_ to file this writ petition challenging Ext.P6. A perusal of Ext.P1 would show that the petitioner is an association, that pursues private medical 5 W.P.(C) No.35768 & 39485 of 2023 practice in the State, and the members of the petitioner association being medical practitioners, have no _locus standi_ to challenge Ext.P6 constituting the committee. The non-inclusion of the petitioner in a committee does not prejudice the petitioner. The petitioner is in no way affected by fixing Minimum Wages in the private hospital sector. Invoking section 9 of the Minimum Wages Act, the committees and sub-committees have been constituted, and the Section only prescribes that the advisory board shall consist of all persons to be nominated by the appropriate Government, representing employers and employees in the scheduled employment who shall be equal in number and the independent person not exceeding 1/3[rd] of its total number of members. The State Government has made a conscious decision to include various stakeholders while formulating committees for the fixation of wages for the employees in private hospitals. It is the policy decision and prerogative of the Government to nominate the representative in the committee. The committee contains representatives of the employers/employees and the inclusion and exclusion of members in the committee folds within the discretionary domain of the Government. The committee will hear all the 6 W.P.(C) No.35768 & 39485 of 2023 affected parties and stakeholders by conducting inquiries and sittings in various centers before giving its report and recommendation to the Government. The petitioner association will have a chance to give its opinions and recommendations when the sittings are conducted by the committee. Therefore, the constitution of the committee is strictly in accordance with the act, and no prejudice is caused to the petitioner. 4. Heard Sri.Sheji P.Abraham and Sri.K.Anand, counsel for the petitioners, and Sri. Ashok M.Cherian, Additional Adv. General, for the respondents. 5. Section 9 of the Minimum Wages Act, 1948 deals with the composition of the committee. It reads as follows: _Composition of committees, etc . Each of the committees, subcommittees and the Advisory Board shall consist of persons to be nominated by the appropriate Government representing employers and employees in the scheduled employments, who shall be equal in number, and independent persons not exceeding one-third of its total number of members; one of such independent persons shall be appointed the Chairman by the appropriate Government._ 6. A reading of Section 9 would show that the appropriate Government has the prerogative to nominate persons representing employers and employees in the scheduled employments, who shall be equal 7 W.P.(C) No.35768 & 39485 of 2023 in number, and also independent persons not exceeding one-third of its total number of members. It can be seen from Ext.P6 that 14 persons are nominated as employee representatives, and 14 as employer representatives. The Labour Commissioner, Thiruvananthapuram, and the Additional Labour Commissioner (Industrial Relations) are appointed as Chairman and Convenor of the committee being independent persons. The constitution of the committee is to hold sittings and advise the Government in respect to the revision of Minimum Wages/rates payable to the employees employed in the Private Hospital Sector. 7. The main contention raised by the counsel for the petitioners in both the writ petitions are that the petitioners being an Association of Medical Practitioners as well as the Indian Medical Association are directly affected by the fixing of Minimum Wages in the private hospital sector and therefore, they ought to have been included as representatives of the employers in Ext.P6. The grievance highlighted is that unless they are included in the committee, they will not get an opportunity to take up their grievances when the Minimum Wages are being fixed. He also pointed out that a few persons who are included as employee representatives are in no way 8 W.P.(C) No.35768 & 39485 of 2023 connected with the Private Hospital Sector, and therefore, the said nomination is bad in law. As far as employers are also concerned, a few of the hospital managements are included, but the petitioners, being an association of medical practitioners who are large in numbers, are not included in the committee. 8. Learned Advocate General countered the argument of the counsel for the petitioners, firstly by referring to Section 9. Section 9 only refers to the committee to be constituted by the appropriate Government representing employers and employees, and it does not specifically state that the person nominated should be directly connected with the private hospital sector. A union representing the employees in the hospital sector is very much competent to represent the employees. Therefore, the few persons by name who have been included in Ext.P6 as representatives of the employees are all office bearers of different unions representing the employees of the private hospital sector cannot be said to be not representing the employees. It is strictly in tune with Section 9 that the committee is constituted. 9. Learned Additional Adv. General relied on the judgment of the Apex Court in _Kerala Private Hospital Association v. State of Kerala (2018) 1_ 9 W.P.(C) No.35768 & 39485 of 2023 _SCC 98)_ and contended that even an employee could represent the employer in the committee for revision of Minimum Wages. He relied on paragraphs 22 to 24 and submitted that if an employee is nominated by the employer to be part of the committee, there is nothing wrong as the Rule nowhere provides that employee cannot be nominated as a representative of the employer in the committee. 10. As far as the independent persons are concerned, his answer is that the Labour Commissioner, Thiruvananthapuram, as well as the Additional Labour Commissioner, are included in the committee as independent persons, and they are also nominated as Chairman and Convenor of the committee. Therefore, the said part of the section is also complied with. To substantiate the fact that even Government employees can be nominated as employees/ independent persons. He relied on the judgment of the Apex Court in _Ministery of Labour and Rehabilitation and Another v. Tiffin’s Barytes Asbestos and Paints Ltd. (1985) 3 SCC 594)_ as well as the _State of Andhra Pradesh v. Narayana Velur Beedi Manufacturing Factory (1973) 4 SCC 178)_ . He further went on to argue that it is the discretion of the Government to constitute the committee as per Section 5 of 10 W.P.(C) No.35768 & 39485 of 2023 the Act on the recommendation of the employers as well as the employees representing them. The petitioners, being an association of persons, cannot seek inclusion of themselves in the committee. Therefore, the constitution of the committee is legal in order to comply with the provisions of the Minimum Wages Act, 1948. 11. A plain reading of Section 9 would show that the nomination is by the government in equal numbers regarding employers and employees. As far as employers are concerned, it is for the employer to nominate their representative and the Government to nominate such a person in the Committee. Nomination is a prerogative of the Government. The committee constituted under Section 9, conducts the whole enquiries and advises the Government in respect of the fixation or revision of minimum wages. The committee, after hearing all the affected parties advised the appropriate government to fix the Minimum Wages under the Act. The grievance of the petitioner is that, if they are not included in the committee, their grievances will not be taken into consideration while fixing the Minimum Wages on the recommendations of the committee is not correct. As mentioned earlier, the petitioners have an opportunity to appear before the committee and to 11 W.P.(C) No.35768 & 39485 of 2023 highlight their grievances. The petitioners, being the association, cannot seek inclusion as members of the representatives of employers in the committee to be constituted under Section 9 of the Act. It is the discretion of the Government to nominate the members of the committee in equal numbers being the representatives of the employers and employees and independent persons. Ext.P6 is issued by the Government in full compliance with Section 9 of the Act. Therefore, there is no arbitrary or illegality in issuing Ext.P6 Government Order. Therefore, these writ petitions fail and are consequently dismissed. _**Sd/-**_ BASANT BALAJI, JUDGE ss 12 W.P.(C) No.35768 & 39485 of 2023 ## `APPENDIX OF WP(C) 39485/2023` ``` PETITIONER EXHIBITS: ``` ``` Exhibit P1 ``` ``` Exhibit P2 ``` ``` Exhibit P3 ``` ``` TRUE COPY OF THE G.O (RT) NO: 799/2012/LBR DATED 28.05.2012 TRUE COPY OF THE G O (R.T) NO: 1334/2016/LABOUR DATED 28.10.2016 ``` ``` TRUE COPY OF THE G O (ORDINARY) NO: 975/2022/LBR DATED 19.08.2022 ``` ``` Exhibit P4TRUE COPY OF THE REPRESENTATION NO: IMA HBI/045/2021-22 DATED 06.09.2022 PREFERRED BY THE PETITIONER ASSOCIATION TO THE HON'BLE MINISTER FOR LABOUR AND SKILLS DEPARTMENT Exhibit P5TRUE COPY OF THE G O (P) NO: 86/2023/LBR DATED 11.10.2023 ``` 13 W.P.(C) No.35768 & 39485 of 2023 ## `APPENDIX OF WP(C) 35768/2023` ``` PETITIONER EXHIBITS: ``` ``` Exhibit P1COPY OF THE CONSTITUTION OF THE ASSOCIATION REGISTERED ``` ``` Exhibit P2COPY OF THE NOTICE DATED 8.2.2019 ISSUED BY THE 2ND RESPONDENT TO THE SECRETARY OF THE PETITIONER ``` ``` Exhibit P3COPY OF THE NOTICE DATED 30.12.2019 ISSUED BY THE 2ND RESPONDENT TO THE SECRETARY OF THE PETITIONER ``` ``` Exhibit P4COPY OF THE NOTICE DTD 02.02.2021 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER Exhibit P5COPY OF THE JUDGMENT DTD 23.01.2023 IN W.P. (C) NO. 15198/2018 ``` ``` Exhibit P6COPY OF THE GOVERNMENT ORDER G.O.(P) NO. 86/2023/LBR DTD 11.10.2023 ``` ``` Exhibit P7COPY OF THE E-MAIL SENT TO THE 4TH RESPONDENT BY THE PETITIONER DTD 23.10.2023 ```