Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, T.R.RAVI, JJ.
Lisie Hospital – Appellant
Versus
Labour Court, Ernakulam, Cochin – Respondent
W.A.No.46 of 2021
Decided on : 09-03-2021
Limitation Act – Sec.14 – Industrial Disputes Act, 1947 – Sections 2, 10 – Trade Unions Act, 1926 – Kerala High Court Act – Section 5 – Strike – Alleged misconduct – Termination of service – Claim of writ appellant is that the 2nd respondent Union had been defunct from the year 1997 and had lost representative capacity, which according to the employer is discernible from Exts.P-2 to P-7. – Further that, respondents 5 to 18 had raised an industrial dispute vide Ext.P-10 complaint petition, etc. – That, later the Conciliation Officer had sent his failure report to the competent authority of the State Government in the Labour Department. – This in turn resulted in Ext.P-11 G.O.(Rt.) whereby the competent authority of the State Government in the Labour Department has in exercise of the powers under Sec.10(1)(c) of the ID Act, had referred the said industrial dispute between the Director, Lisie Hospital, Cochin, and the workmen of above referred establishment represented by the Secretary of above Union, for adjudication to the Labour Court, Ernakulam, and further it was ordered that the Labour Court may pass award thereon within 3 months, which was registered as I.D.No.8/2016 on the file of the Labour Court, Ernakulam
Finding of the court: Court do not have any doubt that the courts exercising the prerogative power of judicial review and superintendence would take into account the principles of exclusion of time as importable from the provisions as in Sec.14 of the Limitation Act, so that the period upto the date of judgment of the Court in a case like this could be excluded so that the workmen could directly invoke their remedy before the Labour Court/Industrial Tribunal as the case may be in terms of the provisions contained in Sec.2A of the ID Act, more particularly Sub Sections (2) & (3) thereto. – That being so, the abovesaid hyper technical contentions of the appellant cannot be of any avail as ultimately the workmens' right to seek remedy in respect of their legally justiciable grievances has to be duly recognized and enforced in the manner known to law. – Abovesaid contentions of the appellant are, to say the least, highly hyper technical in nature. – It cannot be even said for a moment that the appellant has suffered any grave injustice on account of the impugned order passed by the Labour Court at Ext.P-1 as well as the impugned judgment rendered by the learned Single Judge in this WP(C). – Appellant has not made out any case in that regard. – On the other hand, if the hyper technical contentions of the appellant are accepted for argument sake, then it would lead to even depriving the workmen of their precious legal remedies well recognized and mandated in the ID Act, and it may even lead to bar of the civil court jurisdiction, in the result that they may be without any remedy at all. – Such a scenario would be nothing but, grave miscarriage of justice on the workmen and that has to be avoided at any cost in a matter like this. – Contentions of the appellant are not tenable or sustainable so as to call for any interdiction for the considered order passed by the Labour Court at Ext.P-1 or well considered views rendered by the learned Single Judge dismissing the WP(C) of the appellant in this case. – Sub Section (3) of Sec.2A stipulates that the application referred in Sub Section (2) thereof shall be made to the Labour Court or the Tribunal before the expiry of 3 years from the date of discharge/dismissal/retrenchment or otherwise termination of service as specified in Sub Section (1) etc.
Result: Writ Appeal Dismissed
JUDGMENT :
The unsuccessful petitioner employer in the instant Writ Petition (Civil) WP(C) No. 7103/2019 has instituted the afore captioned intra court appeal under Section 5(i) of the Kerala High Court Act, 1958, to impugn the judgment dated 9.12.2020 rendered by the learned Single Judge of this Court, dismissing the above Writ Petition (Civil).
2. Heard Sri.A.V.Xavier, learned counsel appearing for the appellant/writ petitioner, Sri.Paulson C.Varghese, learned counsel appearing for R-2 to R-18 in this appeal and Sri.Asok M.Cherian, learned Senior Amicus Curiae ably assisted and instructed by Sri.Ashok B.Shenoy, learned Amicus Curiae. Since R-1 in this appeal is the Labour Court, notice to that respondent will stand dispensed with.
3. The case projected in the above writ proceedings is broadly as follows: That, contesting respondents 3 to 18 in the WP(C)/WA are workmen of the appellant/writ petitioner Lisie Hospital and R-2 claims to be the registered trade union of employees of said hospital. That, from the beginning of the year 2000, the contesting respondents herein had organized a strike resulting in alleged misconduct inside the hospital and in front of the Director's chamber, which resulted in disciplinary action. Further that, R-4 (one Sri.C.C.Michael) was dismissed from service vide order dated 8.1.2015 pursuant to the finalization of disciplinary action taken in pursuance of the memo of charges dated 28.12.2013. Further that, though he had raised an individual industrial dispute vide his complaint to the District Labour Officer (DLO) and which later resulted in conciliation proceedings, the further outcome of said proceedings is stated to be not known to the employer. Further that, contesting respondents 5 to 18 were dismissed from service on 14.9.2015 pursuant to disciplinary action against them for the alleged misconduct committed by them on 24th & 25th December, 2014, along with the 3rd & 4th respondents, and the incumbent who was then the Public Relations Officer (PRO), who according to the employer is not a workman and who was later retired from service on 2.6.2014, and the said incumbent had raised an individual industrial dispute as per Sec.2A(2) of the Industrial Disputes Act, 1947 {hereinafter referred for short as 'The ID Act'}. Further, the claim of the writ appellant is that the 2nd respondent Union had been defunct from the year 1997 and had lost representative capacity, which according to the employer is discernible from Exts.P-2 to P-7. Further that, respondents 5 to 18 had raised an industrial dispute vide Ext.P-10 complaint petition dated 16.11.2015, etc. That, later the Conciliation Officer had sent his failure report to the competent authority of the State Government in the Labour Department. This in turn resulted in Ext.P-11 G.O.(Rt.) No.432/2016/LBR dated 15.3.2016 whereby the competent authority of the State Government in the Labour Department has in exercise of the powers under Sec.10(1)(c) of the ID Act, had referred the said industrial dispute between the Director, Lisie Hospital, Cochin, and the workmen of above referred establishment represented by the Secretary of above Union, for adjudication to the Labour Court, Ernakulam, and further it was ordered that the Labour Court may pass award thereon within 3 months, which was registered as I.D.No.8/2016 on the file of the Labour Court, Ernakulam.
4. Further that, the 2nd respondent Union had filed a claim statement dated 13.7.2016 and the appellant had filed preliminary written statement dated 18.1.2017 and an additional written statement dated 25.10.2017 before the Labour Court. That, in both in abovesaid written statements, the appellant has raised a specific plea that the 2nd respondent Union does not have representative capacity on account of poor percentage of membership of employees of appellant establishment. The appellant has further alleged that the said Union has only less than 20 members who were employees of the above employer, out of
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
