Dismissed

The Secretary v. the General Secretary

Kerala HC23 Jul 2024WP(C)/25608/2013

Case brief

AI extract

What is this about?

Hospital management challenged an Industrial Tribunal Award setting aside amendments reducing leave entitlements and retirement age from 60 to 55. The High Court upheld the Tribunal's findings that the amendments were prejudicial to workmen and not justified as adjustment against revised minimum wages.

What the court decided

AI extract

The Secretary Vs the General Secretary — Labour and Industrial Disputes | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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TUESDAY, THE 23RD DAY OF JULY 2024 / 1ST SRAVANA, 1946

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WP(C) NO. 25608 OF 2013

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PETITIONERS:

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1 THE SECRETARY MARTHOMA MEDICAL MISSION, MARTHOMA SABHA OFFICE, THIRUVALLA-689101.

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2 THE ADMINISTRATOR FELLOWSHIP MISSION HOSPITAL, KUMBANAD,PATHANAMTHITTA,PIN-689547.

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BY ADVS.
SRI.M.NARENDRA KUMAR
SMT.LAYA SIMON

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RESPONDENTS:

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1 THE GENERAL SECRETARY PATHANAMTHITTA DISTRICT PRIVATE HOSPITAL EMPLOYEES UNION(CITU), PATHANAMTHITTA, PIN 689650

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2A.T.THOMAS
SECRETARY, PATHANAMTHITTA DISTRICT PRIVATE
HOSPITAL EMPLOYEES UNION (CITU) FELLOWSHIP
MISSION HOSPITAL UNIT, KUMBANADU P.O,
PATHANAMTHITTA, PIN - 689547.

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ADDL.R3 PONNACHEN.P.P AGED 51 YEARS

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S/O. (LATE) JOHN V.J, ETTIKALAYIL HOUSE,
PRATTUKULAM, ERAVIPEROOR.P.O.,
PATHANAMTHITTA(ADDL.R3 &ADDL.R4 IMPLEADED VIDE
ORDER DATED 18-03-2024 IN IA1/24 IN W.P.(C)
25608/13)

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WP(C) No.25608 of 2013

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ADDL.R4BINOJ.P.K
AGED 47 YEARS
S/O. KUTTAN.K.M, PLAVINKOOTTATHIL HOUSE,
POOVATHUR.P.O., KOIPURAM, KUNNAM,
PATHANAMTHITTA

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ADDL.R5 SHIJU THOMAS S/O. (LATE) K.S. THOMAS, KAYYALALKKAKATHU, ERAVIPEROOR.P.O., PATHANAMTHITTA

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ADDL.R6 MATHEW P JOHN AGED 52, S/O.(LATE) P.M.JHON PALLIVADAKETHIL, ERAVIPEROOR PO PATHANAMTHITTA

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ADDL.R7MANOJ C.K.
AGED 49, S/O (LATE) KOCHUKUNJU
CHIRAYIL, PULLADA PO
PATHANAMTHITTA

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ADDL.R8 SHEEJA ALEX AGED 53 YEARS W/O. ALEX T. VARGHESE, THODATHUKALAYIL ELROY VILLA, ARANMULA P.O, PATHANAMTHITTA-689 532

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ADDL.R9MARIYAMMA P. JOHN
AGED 53 YEARS
W/O. ANTONY P.P, PUTHENVEYILIL,
KOLLAKADAVU P.O, KADAIKAD-690509

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ADDL.R10 JOLLY VARGHESE, AGED 46 YEARS W/O. JOHN V.O, VARAPPURATHU, THOTTABHAGAM, THIRUVALLA-689 541

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ADDL.R11 ANNAAMMA MATHEW, AGED 45 W/O.MATHEW T.O, SANKARAMANGALATH THELLIYIL, ERAVIPEROOR

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ADDL.R12 ANU P. MATHEW, AGED 49 W/O.THOMAS P. NINAN PANACHAMATTATHU HOUSE PALLIYEKKARA P.O, THIRUVALLA

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ADDL.R13ANITHA GEORGE, AGED 41
W/O.JOHN T DANIEL, G. VILLA,
THALEVADY P.O THIRUVALLA
ADDL.R14SUNI ANI ABRAHAM, AGED 49
S/O. ANI ABRAHAM CHIRAPPURATHU
PURAMATTAN P.0

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ADDL.R15MAYA SATHYAN, AGED 57
W/O. SATHYAN T.B, THAIPARAMB IL

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WP(C) No.25608 of 2013

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MANNANTHALA, KUMBANAD
ADDL.R16MINI MATHEWS, AGED 54
W/O. MATHEW C.V, CHERUKALAMARMIL
KUMBANAD P.0
ADDL.R17SARAMMA MATHEW, AGED 49
W/O.VARGHESE MATHEW,
VALIYAPRAMBIL HOUSE, KUMBANAD P.O
ADDL.R18VINOD KUMAR T, AGED 51
AGED 51, S/O T.V. THANKAPPAN
CHETTUKANDAM, ERAVIPEROOR
THIRUVALLA
ADDL.R19SAM CHACKO, AGED 52
S/O LATE M.C. CHACKO
MUTHOOTTUKALAYIL
VALLAMKULAM EAST PO
THIRUVALLA

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ADDITIONAL R3 AND R4 ARE IMPLEADED AS PER ORDER
DATED 18.03.2024 IN IA NO.1 OF 2024

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ADDITIONAL R5 TO R19 ARE IMPLEADED AS PER ORDER
DATED 23.07.2024 IN IA NO.2 OF 2024

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BY ADV SRI.V.PHILIP MATHEWS

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 23.07.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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WP(C) No.25608 of 2013

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JUDGMENT

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Dated this the 23^rd day of July, 2024

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The petitioners are Secretary, Marthoma Medical Mission Hospital, Thiruvalla and Administrator, Fellowship Mission Hospital, Kumbanad, respectively. The 1^st respondent, as per the Government Order dated 05.01.2012, referred an industrial dispute between the Management and Union for adjudication. The dispute was whether the decision of the Management of Fellowship Mission Hospital, Kumbanad to effect changes in the existing service conditions of workmen including leave with wages, age of retirement / superannuation of the employees in the establishment, is justifiable.

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Before the Court of the Industrial Tribunal, Alappuzha, the Management examined MW1 and MW2 and produced Ext.M1 document, which is the Memorandum of Association and Rules and Regulations of Fellowship Mission

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WP(C) No.25608 of 2013

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Hospital.

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The workmen examined WW1 to WW3 and produced Exts.W1 to W12 documents. The Court exhibits, Exts.X1 to X3, were also marked. After appreciating the evidence on record and after hearing the parties, the Industrial Tribunal concluded that the amendment of Leave Rules and age of superannuation sought for is not justifiable in any manner. Therefore, an Award was passed setting aside the amendments and restoring the Rules as to leave and age of superannuation as it stood prior to the amendment. It is aggrieved by Ext.P6 Award dated 22.07.2013 that the petitioners are before this Court.

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The petitioners contended that the reference under Section 10 of the Industrial Disputes Act, 1947 is incompetent as there is no industrial dispute coming within the purview of the Act warranting adjudication. The Tribunal went wrong in holding that the Management implemented only the revised minimum wages and hence, cannot interfere with the existing

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WP(C) No.25608 of 2013

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leave benefit or age of superannuation of their workmen.

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The petitioners further contend that the Tribunal ought to have found the Minimum Wages Act is made applicable for hospitals right from the year 2000 and hence, the exemption under Section 23 of the Minimum Wages Act is not applicable. The revision made mention by the Tribunal relates to the notification in 2009.

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The petitioners further contend that the Amended Leave Rules are not only not favourable to the employees, but also prejudicial to their interest. The Tribunal failed to note that the employees are entitled to Pensionary Benefits, Gratuity, Provident Fund, etc. and are thus benefitted, which was not taken into consideration by the Tribunal.

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The petitioners’ further argument is that the Fellowship Mission Hospital is a charitable institution conducting palliative care and therefore, the Industrial Disputes Act is not applicable. For all the afore reasons, Ext.P6 is liable to be dismissed.

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WP(C) No.25608 of 2013

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Heard.

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The Tribunal, after appreciating the evidence and arguments, found that fixing the rate of wages in the Employments Schedule to the Minimum Wages Act, 1948, required the appropriate Government to fix the minimum rate of wages payable to the employees employed in the scheduled employments and revised minimum rate of wages so fixed at intervals not exceeding five years. In this case, it is a scheduled employment and is bound to pay notified minimum wages and it is not conditional upon any other factors.

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As regards amendment of Leave Rules, the Tribunal found that the reasons stated by the Management that it is done so as to bring it in tune with Section 13 of the Kerala Shops and Commercial Establishments Act, 1960 is not acceptable. The Casual Leave is reduced to 12 days in an year in place of 15 days, Earned Leave is reduced to 12 days in a year in place of 30 days for every 11 months of service

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WP(C) No.25608 of 2013

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and Sick Leave is reduced to 12 days in a year in place of 15 days. As per the unamended Rule 18(4), the employees could take Sick Leave for maximum period of three months at a time. The said provision has been deleted. Therefore, the Amended Leave Rules are not favourable to the workmen, but those are prejudicial to the employees.

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The Tribunal further found that as per the amendment of Rule 32, the retirement age is reduced from 60 years to 55 years. The Rule of superannuation is also not beneficial to the employees. The workers are therefore very much aggrieved by the amendments effected.

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The Tribunal found that Section 12 preserves the right of employees to avail better leave terms than what are provided in the Act. Therefore, the Management cannot amend the Leave Rules in such a way as to curtail better terms of leave being enjoyed by the workmen as per the contract of service invoking the provisions of the Kerala Shops and Commercial Establishments Act. On these grounds, the

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WP(C) No.25608 of 2013

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Tribunal found that the amendments are unjustified.

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As regards minimum wages, the Tribunal found

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that the liability for payment of minimum wages cannot be raised as an excuse for interfering with the conditions of service being enjoyed by the employees. It cannot be accepted that in order to adjust the financial burden incurred due to the payment of revised minimum wages, the Management is justified in changing the conditions of service.

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The obligation to pay minimum wages is absolute and inflexible.

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As regards the age of retirement, the Tribunal noted that apart from making sweeping statements that advancement of age has adversely affected the performance of employees and reduction in age of superannuation is essential, the Management has not substantiated the matter adducing cogent evidence in this regard. It is the approach of the Management that these amendments are introduced to cut the cost of expenditure of the Hospital so as to meet the

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WP(C) No.25608 of 2013

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revised minimum wages. Such reasons cannot be accepted

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as legal.

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I find that the Industrial Tribunal has considered all

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materials on record and has appreciated the evidence adduced by either side properly. The findings of the Tribunal cannot be said to be illegal or perverse. Therefore, I find no reason to interfere with Ext.P6 Award passed by the Court of the Industrial Tribunal, Alappuzha in exercise of the powers under Article 226 of the Constitution of India.

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The writ petition fails and it is dismissed.

Sd/-

N.NAGARESH

JUDGE

spk

WP(C) No.25608 of 2013

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APPENDIX OF WP(C) 25608/2013

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PETITIONER EXHIBITS

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`EXHIBIT`	`P1` `TRUE` `G.O.` `DATE`	`COP` `(RT)NO.37/` `D 05.01.20`	`Y` `OF` `THE` `ORDER` `2012/LBR,THIRUVANANTHAPURAM` `12`
`EXHIBIT`	`P2` `TRUE` `OF` `PATH`	`COPY` `THE` `ANAMTHITTA`	`OF` `THE` `PROCEEDINGS` `DISTRICT` `LABOUR` `OFFICER,` `, DATED 31.08.2010`
`EXHIBIT`	`P3` `TRUE` `THE`	`COPY OF` `RESPONDENT`	`THE CLAIM STATEMENT FILED BY`
`EXHIBIT`	`P4` `TRUE` `PETI`	`COPY OF` `TIONER.`	`THE STATEMENT FILED BY THE`
`EXHIBIT`	`P5` `TRUE` `MART`	`COPY OF` `HOMA MEDIC`	`THE AMENDED SERVICE RULES OF` `AL MISSION, THIRUVALLA`
`EXHIBIT`	`P6` `TRUE` `PASS` `ALAP`	`COPY OF` `ED BY` `PUZHA.`	`THE AWARD DATED 22.07.2013` `THE INDUSTRIAL TRIBUNAL,`

The Secretary v. the General Secretary

Case brief

What is this about?

What the court decided

The Secretary v. the General Secretary

Case brief

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