Research › Browse › Judgment

Kerala High Court · body

1986 DIGILAW 16 (KER)

P. K. VISALAKSHY v. STATE OF KERALA

1986-01-07

K.S.PARIPOORNAN

body1986
ORDER : K.S. Paripoornan, J.—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 Vs. State of Kerala, (1983) 1 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 dt. 1st June 1983 was cancelled by Ext. P1, Government Order, dt. 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-clause (bb) - in Section 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. PI 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-clause (bb) to Section 2(oo). This amendment came into force on 18th August 1984. Subsequently, Kerala Public Services Amendment Ordinance 1983 was promulgated. So also the I.D. Act 1947 has been amended adding Sub-clause (bb) to Section 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 Rule 9(a)(i) of K.S. & S.S.R. will come within the ambit of Section 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 of 1984) with retrospective effect from 1st October 1981 was considered regarding its scope and effect on temporary or provisional appointments under Rule 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 LT 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 Rule 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-clause (bb) to Section 2(oo) is also relevant. 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-clause (bb) to Section 2(oo) is also relevant. They said sub-clause is as follows: (bb) Termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or such contract being terminated under a stipulation in that behalf contained therein; or The Statement of Objects and Reasons relating there to is contained in 1985 Ker. LT Part I Journal Page 4(Central Statutes?) It is as follows: (i) Difficulties have arisen in the interpretation of the expression "retrenchment". It is proposed to exclude from the definition of "retrenchment" as contained in the Act, termination of the service of a workman as a result of the non-renewal of the contract of employment on its expiry and of the termination of such contract in accordance with the provisions thereof. It also contained in Current Central Legislation Part 10, Pages 444 and 445. The events that led to the amendment and the scope of the amendment have been discussed in Malhotra Law of Industrial Disputes, 1985 Edn. Vol. I, pages 306 to 317. The observations at pages 317 and 320 explain the scope of the amendment. It follows that the petitioners' claim to continue in service is without force. 4. The main contention advanced by petitioners' counsel is that Sub-clause (bb) inserted in Section 2(oo) Of the I.D. Act has no retrospective effect. It is stated that the persons who were appointed provisionally before and were continuing in service on 18th August 1984 when the amendment to the I.D. Act came into force have got a vested or accrued right. The amendment aforesaid has no retrospective effect. So whatever may be the scope of the Kerala Public Services Amendment Act 1983 (Act 4 of 1984) the petitioners are still workmen entitled to the benefits of Chapter V-A of the I.D. Act. The amendment of the I.D. Act has no retrospective effect. 5. I see no force in this contention. As stated by G.P. Singh in his Treatise "Principles of Statory Interpretation" 3rd Edn. (1983) at P. 342. The amendment of the I.D. Act has no retrospective effect. 5. I see no force in this contention. As stated by G.P. Singh in his Treatise "Principles of Statory Interpretation" 3rd Edn. (1983) at P. 342. The rule against retrospective construction is not applicable to a statute merely "because a part of the requisites for its action is drawn from a time antecedent to its passing. If that were not so, every statute will be presumed to apply existence after its operation and the rule may well result in virtual nullification of most of the statutes. The real issue in each case is as to the scope and ambit of a particular enactment, having regard to its language and the object discernible from the statute read as a whole. Considered in the above light, no question of retrospectivity of the amendment Act arises. 6. Even so, it is also useful to bear in mind the following observations of Thompson J. in delivering the judgment of the Divisional Court in Customs and Excise Commrs. v. Thorn Electrical Industries Ltd. (1975) 1 All ER 439 ...we say first that if the meaning of words in an enactment is clean, there is no presumption against them having a retrospective effect, if that is indeed the result they produce. The said decision was taken in appeal to the House of Lords. The decision of House of Lords is reported in Customs and Excise Commrs. v. Thorn (1975) 3 All ER 890 as well as Lord Fraser at p. 986 of the reports, were also inclined to take the same view. 7. In view of the above statutory provisions and the statement of the laws I am of the opinion that Ext. P1 in O.P. No. 8 of 1986 and Ext. P2 in O.P. 72 of 1986 do not suffer from any infirmity as contended by the petitioners. They are valid and enforceable. In view of the Kerala Public Services Amendment Act, 1983 as also the amendment to the I.D. Act, the petitioners have no legal claim. 8. The O.P.s are devoid of force. They are dismissed in limine.