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2025 Supreme(Online)(Ker) 54016
IN THE HIGH COURT OF KERALA AT ERNAKULAM
VIJU ABRAHAM, J
DR. BIREN J. THOOMPUNKAL – Appellant
Versus
THE ASSISTANT LABOUR OFFICER, OFFICE OF THE ASSISTANT LABOUR OFFICER, ERNAKULAM – Respondent
WP(C) NO. 25018 OF 2021
For the Appellants/Petitioners: SRI.P.VISWANATHAN (SR.), SHRI.SHIBU JOSEPH, SRI.AJITH VISWANATHAN, SHRI. SAYED MANSOOR BAFAKHY THANGAL, SHRI.V.C. XAVIER, SHRI.JEFFIN JOHN
For the Respondents: SHRI.BENNY P. THOMAS (SR.), SRI.D.PREM KAMATH, SRI.TOM THOMAS (KAKKUZHIYIL), SHRI.ABEL TOM BENNY, SHRI.JYOTHISH KRISHNA, SHRI.KURIAN OOMMEN THERAKATH, SMT.SRUTHY J. MAMPILLY, SHRI.JAIKRISHNAN.M.PISHARODI
Employment status of medical practitioners clarified under relevant laws; courts afford rights to experience certificates based on established service relationships.
Headnote:(A) Kerala Shops and Commercial Establishments Act, 1960 - Section 5F - Issue of service certificate - Petition for issuing experience certificate for services rendered as Senior Consultant Physician - Petitioner’s request rejected on grounds of no employer-employee relationship - Court finds petitioner was 'employee' under the Act, entitled to experience certificate. (Paras 9, 10)
(B) Employment relationship under Acts - Definition of employee and commercial establishment clarified - Professional fees not excluding employee status under the Act - Court directs issuance of experience certificate within specified time frame. (Paras 3, 9)
| Table of Content |
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| 1. factual background related to the petitioner's service and termination. (Para 2 , 3) |
| 2. arguments regarding employment status and service certificate. (Para 4 , 6) |
| 3. court's observation on the applicability of employment definitions under relevant legislation. (Para 5 , 8) |
| 4. issuance of service certificate and employment recognition affirmed. (Para 9) |
| 5. conclusive ruling on providing the experience certificate within specified time. (Para 10) |
VIJU ABRAHAM, J.- - - - - - - - - - - - - - - - - - - - - - - - - -
W.P.(C) No.25018 of 2021 - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 18th day of November, 2025
JUDGMENT
The above writ petition is filed seeking to quash Ext.P9 and for a consequential direction to the 1st respondent to direct respondents 2 to 5 to issue an experience certificate to the petitioner in the light of Ext.P5 application and Ext.P7 reply submitted by the petitioner.
2. The brief facts necessary for the disposal of the writ petition are as follows:
The petitioner is a medical practitioner and was working in the 2nd respondent hospital as a Senior Consultant Physician. Respondents 3 to 5 are the Managing Partner, the C.E.O. and the Manager, Human Resources of the 2nd respondent hospital, respectively. The petitioner commenced his service in the 2nd respondent hospital as a Consultant Physician, as early as on 15.05.2001. In recognition to his long and dedicated service, respondents 2 to 5 appointed the petitioner as a Senior Consultant Physician, as per Ext.P1 letter dated 23.07.2019. Ever since 15.05.2001, the petitioner has been in continuous and uninterrupted service in the 2nd respondent hospital. While so, the 4th respondent issued Ext.P2 notice whereby the service of the petitioner was terminated from the 2nd respondent hospital, invoking clause 13 of Ext.P1 letter of appointment. After the issuance of Ext.P2, from 11.07.2020 onwards the petitioner discontinued his service from the 2nd respondent hospital. Thereupon the petitioner made a request on 09.07.2020, to issue his experience certificate, to which he is entitled for his stint at the 2nd respondent hospital since 15.05.2001. But the 4th respondent intimated that the same could not be issued. Thereupon Ext.P3 lawyer notice was issued by the petitioner, to which Ext.P4 reply was submitted by the respondents stating that the petitioner was serving as a Senior Consultant Physician and he was never employed by the 2nd respondent hospital and that there was no employer-employee relationship and therefore, the petitioner is not eligible for gratuity or experience certificate. The petitioner submits that the action of respondents 2 to 5 in not issuing an experience certificate as requested by the petitioner is in violation of Section 5F of the Kerala Shops and Commercial Establishments Act, 1960 (hereinafter referred to as 'the Act, 1960'). The petitioner is highly in need of his experience certificate as a reference for his career prospects and non-issuance of the same would cause serious prejudice to the petitioner. Since respondents 2 to 5 refused to issue the experience certificate, the petitioner filed Ext.P5 application dated 13.10.2020 before the 1st respondent - Assistant Labour Officer, seeking a direction to respondents 2 to 5 to issue an experience certificate for the services rendered by him from 15.05.2001, in the 2nd respondent hospital. Thereupon Ext.P6 communication was issued by the 1st respondent wherein the petitioner was directed to substantiate the fact that the present hospital would fall under the definition of an establishment as contemplated under the Act, 1960, and as to whether 'doctors' fall under the definition of 'worker,' under the said Act or any other law and also to prove that he was working for a fixed time on the basis of a proper salary arrangement in the 2nd respondent hospital. In consequence to the issuance of Ext.P6, the petitioner submitted Ext.P7 reply, wherein the requisite docu
