IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 WP(C).No. 7861 of 2010(G) --------------------------------------- PETITIONER(S): ------------------------- DIVINE MEDICAL CENTRE LTD., REPRESENTED BY ITS MANAGING DIRECTOR, P.O.WADAKKANCHERY, THRISSUR DISTRICT. BY ADV. SRI.P.BHASKARAN RESPONDENT(S): --------------------------- 1. INDUSTRIAL TRIBUNAL, PALAKKAD, PALAKKAD DISTRICT. 2. DR.GEORGiE ABRAHAM CHACKO, VALLEY VIEW, SANTHI NAGAR, KUMARANELLUR POST, WADAKANCHERY, THRISSUR DISTRICT. R1 BY SR. GOVERNMENT PLEADER SRI. K.C. SANTHOSH KUMAR R2 BY ADV. SRI.JIJO PAUL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss K.SURENDRA MOHAN, J ........................................... WP(C).NO.7861 OF 2010 ............................................ DATED THIS THE 2nd DAY OF JUNE, 2010 JUDGMENT The petitioner has filed this writ petition challenging the action of the first respondent, the Industrial Tribunal, Palakkad in not considering the issue of maintainability as a preliminary point. According to the petitioner, the second respondent had been employed in the petitioner- hospital as an Anesthetist. He was not in the regular service of the petitioner but was only engaged as and when the requirement arose. The second respondent claimed that he had been permanently employed with the petitioner since 25.4.1990. He alleged that he had been denied employment by the petitioner. The Industrial dispute so raised is being adjudicated by the first respondent as I.D.No.95 of 2007. 2. As a preliminary objection, the petitioner contended that the second respondent was not a workmen as defined in Section 2(s) of the Industrial Disputes Act. He relies on a decision of this court to support his contention. He also requested for the said question to be decided as Wpc 7861/2010 2 a preliminary issue. According to the petitioner, instead of considering the preliminary issue, the Tribunal is proceeding with the trial of the case by recording the evidence. The petitioner has filed Ext.P4, M.P.No.19 of 2007, raising the question of maintainability of the case. However, no orders have been passed thereon. 3. Adv.Jijo Paul appears for the second respondent. According to the counsel, the decision relied on by the petitioner has no application for the reason that in the said case, the finding that the Doctor therein was not a workmen, was entered for the reason that he was a senior doctor exercising supervisory functions. Therefore, the question as to whether the second respondent was a workmen or not would have to be decided only on the basis of the evidence to be let in by the parties. The counsel therefore submits that there is nothing wrong in the first respondent proceeding to record evidence in the case. 4. The learned Senior Government Pleader, on instructions submits that the Tribunal has proceeded to record the evidence in the case only with the object of considering the question of maintainability as a preliminary issue. Wpc 7861/2010 3 5. In the above circumstances, this writ petition is disposed of directing the first respondent to consider the question of maintainability raised by the petitioner as a preliminary issue, if necessary, after permitting the parties to let in evidence in support of their respective contentions and to decide the question of maintainability first before recording evidence with respect to the merits of the case and passing final orders thereon. K.SURENDRA MOHAN, JUDGE lgk