VISWANATHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Our learned brother Narendran J., has referred this petition to a Division Bench when it came up for admission before him. This was perhaps because the learned Judge might have felt that this Original Petition is only a further attempt to see whether provisional employees appointed temporarily could continue without termination though this Court had in a Full Bench Decision in O. P. No. 3859/81 and connected cases ( 1982 KLT 829 ) laid down the guidelines for terminating their services. A large number of Original Petitions were filed in this Court by employees, of the State Government, of Municipal Corporations, of public sector concerns and other bodies seeking the application of the provisions of the Industrial Disputes Act in the matter of termination of their services and also seeking appropriate reliefs in the light of application of the provisions of the Act. The matter was referred to a Full Bench and in a series of petitions, O. P. No. 3859/81 and connected cases (1982 KLT 829), this court examined the scope of the term 'workman' and the scope of the term 'industry'. The Full Bench held that except when the State performs its inalienable functions the class of persons who would come within the definition of 'workman' under the Industrial Disputes Act would be able to claim rights under that Act as against their employers. In those cases it was not contended that the right of such workmen under Industrial Disputes Act would extend to defeating the rights of recruits advised by the Public Service Commission to join the respective posts to which they are advised. In other words, the plea before us was only that until regular Public Service Commission recruits join the posts, those in office, though holding such office by temporary appointments, should be allowed to continue in office. This Court referred to this aspect of the matter in the Full Bench Judgment. Necessarily therefore in dispensing with the service of such temporary employees the employer will have to take note of S.25G and in cases where S.25F applies, that section also. In the matter of reemployment S.25H would apply, but since it was not contended in those cases that S.25H would operate so as to defeat the rights of regular recruits through the Public Service Commission that was not dealt with. In this petition, which perhaps heralds a fresh batch of petitions the second stage commences. Here the contention raised is that if the temporary employees are entitled to the benefits of the provisions of the Industrial Disputes Act, the benefit of S.25H should so operate as to debar any appointment of new appointees being made since that would directly contravene S.25H of the Industrial Disputes Act. It is therefore said that when once temporary employees obtain the right under Chap.5A, S.25H will operate so as to nullify any appointments sought to be made on the basis of advice by the Public Service Commission. That would mean that the temporary employees will have to continue for all time without being displaced by regular appointees. Whether this could be the position calls for examination in this petition.

(2.) The petitioners in this Original Petition are Lower Division Typists (Malayalam). They have been originally appointed for a period of 180 days under R.9 of the Kerala State and Subordinate Services Rules. When the departmental authorities took steps to terminate their appointments on completion of 180 days they filed Original Petition O. P. No. 25/82 before this Court and this Court stayed the termination of the petitioner's services till Public Service Commission hands join duty. It is subsequently that the Full Bench held that the provisional employees like the petitioners were entitled to protection of Chap.5A of the Industrial Disputes Act, 1947.

(3.) S.25G of the Industrial Disputes Act deals with the procedure for retrenchment. Retrenchment from a particular category of workmen in an establishment shall ordinarily be on the basis of the principle 'last come first go'. Though this is the ordinary rule there may be exceptions, but in the case of such exceptions the employer has to record reasons why he retrenches contrary to the rule. S.25H really operates as supplement to S.25G. Where retrenchment has been effected and fresh appointments are contemplated thereafter the retrenched workmen will be given an opportunity for reemployment and such retrenched workmen have preference over others. Necessarily therefore, if provisions of S.25G apply, normally, juniors are to be retrenched in preference to seniors. By operation of S.25H seniors retrenched cannot be replaced by juniors and necessarily therefore by new recruits. Those who have been retrenched are entitled to preference over new appointees. What is urged is that even if the petitioners are liable to be retrenched if there is to be reappointment to those posts, under S.25H the petitioners will have the right of preference over new appointees even though they may be those advised by the Public Service Commission in a regular recruitment. To deny this to the petitioners would be to violate S.25H and that will be illegal. The prayer in the Original Petition is that writ of prohibition must issue restraining the termination of the services to give place to fresh hands recruited through the Public Service Commission and to declare that the petitioners have a right of reemployment as provided under S.25H of the Industrial Disputes Act.