P K VISALAKSHY Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE O. P. s raise common questions. They were heard together. There are six petitioners in O. P. 8 of 1986. They were appointed provisionally by the 3rd and 4th' respondents. It is stated that they are workmen as defined in the industrial Disputes Act and so they are entitled to protection and benefits given in Chap. V-A of the Act. Reliance was placed in the decision reported in Umayammal v. State of Kerala (1983-I-LLJ-267 ). By Government Order dated 1st June 1983 the municipalities were directed not to terminate the service of the provisional hands without complying with the provisions of the Industrial Disputes Act. This order date. 1st june 1983 was cancelled by Ext. P1, Government order, date. 11th December 1985. Reliance is placed in Ext. P1 order-on subsequent legislations -Kerala Public Services Amendment Ordinance 1983 and also the amendment effected in the i. D. Act 1947 by Act 49 of 1984 by inserting a new sub-cl. (bb) in S. 2 (oo ). It is stated that respondents 3 and 4 have already passed orders terminating the services of the petitioners. Ext. P2 is relied on in this connection. The petitioners pray for the issue of a writ of certiorari to quash ext. P1 and also for a declaration that the petitioners' services cannot be terminated without complying with the provisions of the I. D. Act, especially, Chap. V-A and for stay of operation of Ext. P2 order:

(2.) IN O. P. 72 of 1986 there are five petitioners. They were appointed provisionally by the respondents on the basis of the recommendation of the employment Exchange. It is stated that the municipality will come within the ambit of the definition "industry" as defined in the I. D. Act and so the petitioners, who are employed by the municipalities (respondents 1 and 2) will be workmen. It is stated that this Court declared in umayammal v. State of Kerala (Supra) that the provisional employees are workmen. Government issued Ext. P1 notification dated 1st June 1983 stating that the services of persons recruited to the municipal service through the Employment exchanges will be terminated only in accordance with the I. D. Act. Subsequently, Kerala Public services Amendment Ordinance 1983 was promulgated. So also the I. D. Act 1947 has been amended adding sub-cl. (bb) to S. 2 (oo ). This amendment came into force on 18th August 1984. These statutory enactments have no application to the petitioners. On the basis of these subsequent statutory enactments, the 2nd respondent has issued Ext. P2 order stating that the provisional employees appointed under r. 9 (a) (i) of K. S. and S. S. R. will come within the ambit of S. 2 (oo) (bb) and also has cancelled ext. P1. On the basis of Ext. P2, the 1st respondent is proposing to terminate the services of the petitioners and retrench them. This is illegal. The petitioners pray for the issue of a writ of certiorari to quash Ext. P2 order and also for the issue of a writ of mandamus directing the respondents not to discharge the petitioners from service till a Public Service Commission-recruited hand is posted against the post held by them.

(3.) THE main arguments in the case were advanced by counsel for the petitioners in O. P. No. 8 of 1986. Mr. M. V. Joseph, Counsel for the petitioners in O. P. No. 72 of 1986, Mr. A. Salish, adopted the arguments of Mr. M. V. Joseph. It is common ground that the Kerala Public Services ordinance, which subsequently became Kerala public Services Amendment Act 1983 (Act 4 of1984) with retrospective effect from 1st October1981 was considered regarding its scope and effect on temporary or provisional appointments under R. 9 (a) of the Kerala State and Subordinate services Rules by a Division Bench of this Court in S. Parimalom v. State of Kerala (1985 Ker. L. T. 624 ). The scope of the decision of the supreme Court in Narayani's case AIR (1985)SC 534 was also considered. It was held that persons who were appointed temporarily or provisionally under R. 9 (a) (i) of the K. S. and s. S. R. have no legal right to continue in service beyond the period for which appointment was made. In this connection the amendment effected by Industrial Disputes Amendment Act 1984 (Act 49 of 1984) which took effect from 18th august 1984 by adding sub-cl. (bb) to S. 2 (oo)is also relevant. They said sub-clause is as follows: