STATE OF KERALA Vs. M DAISY

JUDGEMENT

(1.) The issue that arises for consideration in this Writ Appeal is whether, the respondent rein, who was a provisional employee in the service of the appellants, is entitled to pensionary benefits. The brief facts of the case are as follows:- The respondent herein, the petitioner in W.P. (C) No. 20727 of 2004 from which Writ Appeal arises, was appointed as IInd Grade Draftsman on a provisional basis Ext. P1 order dated 6.10.1982 issued by the Executive Engineer, Command Area Development Authority Division, Thrissur and posted in the office of the fourth appellant. The appointment of the respondent was purely on a provisional basis, for a period of 180 days from the date of joining duty or till regular hands become available, which ever is earlier. It was also stipulated in Ext. P 1 order that the appointment is liable to be terminated at any time without prior notice. Pursuant to Ext. P1 order, the respondent joined duty on 20.10.1982. She continued in service beyond the period of 180 days for which she was appointed.

(2.) While the respondent was in service, a full Bench of this Court held in Umayammal v. State of Kerala, 1982 KerLT 829 that provisional or temporary employees working in Government departments, Government companies, statutory corporations and local bodies, except employees working in Government departments discharging inalienable sovereign functions, are entitled to the protection of Chapter V-A of the Industrial Disputes Act, 1947 and that their services can be terminated, except for giving place to regular hands recruited by the Kerala Public Service Commission, only in accordance with the provisions of the Industrial Disputes Act, 1947. The Full Bench also observed that notwithstanding the provisions contained in S. 25-J of the Industrial Disputes Act, 1947, it may be possible for the Government to exclude the operation of Chapter V-A of the Act, by a positive legislative provision.

(3.) The Government accordingly promulgated Ordinance No. 5 of 1983 on 8.2.1983 introducing S. 4 in the Kerala Public Services Act, 1968 to exclude the operation of the provisions of the Industrial Disputes Act, 1947 in the matter of appointment of any person to any public service or post in connection with the affairs of the State of Kerala. The respondent herein thereupon filed O.P. No. 2570 of 1983 in this Court challenging the validity of Ordinance 5 of 1983. The validity of Ordinance 5 of 1983 was upheld by this Court in O.P. No. 1119 of 1983 and connected cases. Consequently, by Ext. P2 judgment delivered on 4.4.1983, O.P. No. 2570 of 1983 was dismissed. However on mention being made before the learned single Judge that Ordinance 5 of 1983 had lapsed since it was not replaced by an Act of the legislature, though the Kerala Legislative Assembly was in session from 25.2.1983 to 30.3.1983, even while dismissing O.P. No. 2570 of 1983, the learned single Judge observed that if the Ordinance lapses and nothing else is substituted in its place, the rights of parties will be governed by the Full Bench decision of this Court in Umayammal v. State of Kerala . The Government thereafter promulgated Ordinance 16 of 1983, followed by Ordinance 36 of 1983. Ordinance 36 of 1983 was replaced by an Act of the State Legislature whereby the Kerala Public Services Act, 1968 was amended with effect from 1.10.1981 by inserting S. 4, which reads as follows: