M.K. SURESH KUMAR vs THE UNION OF INDIA

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MR.JUSTICE BASANT BALAJI
ND
FRIDAY, THE 22 DAY OF MAY 2026 / 1ST JYAISHTA, 1948
WA NO. 1051 OF 2026
AGAINST THE JUDGMENT DATED 08.04.2026 IN WP(C) NO.14179 OF
2026 OF HIGH COURT OF KERALA
APPELLANTS/PETITIONERS IN WPC:
1 M.K. SURESH KUMAR, AGED 67 YEARS
'KAIVALYAM', THOTTUDA P.O, KANNUR, PIN - 670007
2 K. PADMANABHAN, AGED 60 YEARS
THAYANADATH HOUSE, PALAYAD, THALASSERY, KANNUR, PIN -
670661
BY ADV SRI.A.ABDUL NABEEL
RESPONDENTS/RESPONDENTS:
1 THE UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF LABOUR AND
EMPLOYMENT GOVERNMENT OF INDIA, SHRAM SHAKTI BHAWAN,
RAFI MARG, PIN - 110001
2 THE JOINT SECRETARY
THE GOVERNMENT MINISTRY OF LABOUR AND EMPLOYMENT,
GOVERNMENT OF INDIA, SHRAM SHAKTI BHAWAN, RAFI MARG,
NEW DELHI, PIN - 110001
BY ADV SHRI.AMAL PARTHASARADHY, CGC
ADV. SRI. P. SREEKUMAR - ASGI.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.05.2026,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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'CR'
JUDGMENT
Devan Ramachandran , J.
The appellants call into question the correctness of
the judgment of the learned Single Judge in WP(C)
No.14179/2026.
2. Through the afore writ petition, the appellants
sought a declaration that the Industrial Relations Code
(Amendment) Act, 2026 (Act No.1 of 2026) (for short 'the
Amendment Act') is unconstitutional, arbitrary and ultra vires
the provisions of the Industrial Relations Code, 2020 ('Code'
for short); and that it is also violative of Articles 14 and 21 of
the Constitution of India. They also sought that the
amendment dated 16.02.2026, to the extent to which sub-
section (1A) was introduced in Section 104 of 'the Amendment
Act', be declared illegal; and consequently, that a writ of
prohibition be issued, to restrain Labour Courts, Industrial
Tribunals and National Tribunals constituted under the
Industrial Disputes Act, 1947 (for short 'ID Act') from
adjudicating any existing or new cases under the Code.

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3. The learned Single Judge considered the rival
contentions and repelled them, finding that the impugned
provision does not suffer from any vice from the standpoint of
constitutional propriety or incorrectness; and the appellants
are before us in appeal.
4. Sri.A.Abdul Nabeel – learned counsel for the
appellants, argued that sub-section (1A) of Section 104 of the
'Code' is manfestly illegal and unconstitutional because, it
permits the earlier Tribunals and Judicial Forums to act, even
though the Statutes under which they were constituted stand
expressly repealed. He argued that, by allowing this, Sections
44(7) and 51(1) of the 'Code' would stand violated and
defeated, because they provide for mandatory transfer of all
cases to Forums which have multiple members, and not single,
as are permitted by the repealed Statutes. He then argued
that the 'Code' also creates legal issues since, the powers of
the respective States have been curtailed; and hence that his
clients were justified in having approached this Court.
5. In response, Sri.P.Sreekumar, learned Additional
Solicitor General of India, instructed by Sri.Amal
Parthasarathy – learned Central Government Counsel,

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appearing for the respondents, argued that Section 104(1A) of
the 'Code' is only a transitory provision, which provides for
adjudication of matters pending the establishment of the
Tribunals under it. He pointed out that if the challenge to the
provision is to be upheld by this Court, then it would lead to a
situation where there would be no Tribunals or Forums to
adjudicate any of the existing disputes; and that this would
culminate in a virtual “cryonic freeze”, thus bringing disservice
to litigants, rather than any benefit to them. He argued that,
in any event, this would be not necessary for this Court to
evaluate because, the provision in question does not suffer
from any constitutional error; and hence that the endevour of
the appellants is a misadventure and nothing more.
6. We have evaluated the afore rival submissions, on
the touchstone of the judgment of the learned Single Judge.
7. The learned Judge has adverted to the provisions of
the 'Code' and has relied upon the judgment of the Hon'ble
Supreme Court in Shayara Bano v. Union of India [(2017) 9
SCC 1], to analyse whether the impugned provision can be
construed to be “manifestly arbitrary”, so as to bring it within
the vice of constitutional impropriety. The conclusion entered

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is to the contrary, and we are now to verify whether it is
otherwise.
8. As rightly argued by Sri.P.Sreekumar – learned
ASGI, Section 104(1A) of the 'Code' is a non-obstante
provision, which provides that the functionaries and statutory
authorities under the repealed Acts as per it, would continue
to function till the Tribunals and other Authorities become
functional under it. This Court is cognizant that the issues
relating to the constitution of the Tribunals and statutory
Authorities under the 'Code' are pending before the Hon'ble
Supreme Court and that interim orders have also been issued
by it. In fact, we are told by the learned ASGI that the
constitution of the Tribunals and the statutory Authorities is
underway and that it is likely to be completed within the
shortest period of time.
9. Be that as it may, when a statutory provision is
challenged, the appellants will indubitably have to bring it
within the purlieus of either an imputation that the legislature
did not have the power to legislate under the Doctrine of Pith
and Substance, or that the provision is so arbitrary that it
shocks the constitutional conscience.

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10. As rightly found by the learned Single Judge, in
Shayara Bano (sic), the Hon'ble Supreme Court has rendered it
apodictic that it is only in the case of manifestly and shockingly
arbitrary provisions, will the jurisdiction of Courts be normally
attracted.
11. As per the impugned sub-section, it merely
enables the existing Tribunals and statutory Authorities to
continue. Far from being arbitrary and shocking, this creates
a transitory mechanism, for the period until new Tribunals and
statutory Authorities are brought into existence; thus removing
any event to cause prejudice to litigants and claimants. If it is
to be seen otherwise, then, as also rightly pointed out by
Sri.P.Sreekumar – learned ASGI, a situation would surely
present itself, where there would be a complete cessation of
the judicial functions as required either under the repealed
Acts or under the new 'Code'; and this would certainly not
behoove any interest – be that of the litigant, or that of the
State.
12. Finally, on the argument of Sri.A.Abdul Nabeel,
that the transitory provision is in conflict with Sections 44(7)
and 51(1) of the 'Code', we think otherwise, for the singular

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reason that these provide for mandatory transfer of cases and
for constitution of the Tribunals. It is precisely during the
time it takes for the Tribunals to be so constituted, that the
transitory provision applies. We cannot bring ourselves to find
anything wrong in this, particularly when there is no case for
the appellants that the legislature did not have the competence
to legislate in the manner it has done.
We thus find full favour with the views and holdings of
the learned Single Judge; and consequently, dismiss this
appeal.


Sd/- DEVAN RAMACHANDRAN
JUDGE

Sd/- BASANT BALAJI
JUDGE
stu