President, Kozhikode Jilla Pvt.Hospital vs Manager,National Hospital

A.Muhamed Mustaque, J

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.

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 withheld from production before the Labour Court.

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.

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 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.

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 regular service of each worker. The finding would show that workers were engaged as and when their service is required by the management.

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.

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 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.