Bhaskaran Nambiar, J.
1. Can a workman employed in an industry and retrenched from service, to give place to a candidate advised by the Public Service Commission, claim protection under Section 25F of the Industrial Disputes Act? This, in short, is the question raised in these two writ appeals,
2. Chapter V-A of the Industrial Disputes Act confers very valuable rights to workman in an industry. Several Departments of the Government and many statutory corporations have to be treated as 'industry' in view of the pronouncement of the Supreme Court in the Bangalore Water Supply v. A. Rajappa 1978-II L.L.J. 73, and the ruling of a Full Bench of this Court in Umayammal v. State of Kerala 1983-I L.L.J. 267. Thereafter this court had to consider the competing claims of the candidates advised for appointment by the Public Service Commission and the workmen retrenched under the Industrial Disputes Act. This court in Viswambharan v. State of Kerala 1983 K.L.T. 635 observed thus:
The provisions of the Industrial Disputes Act cannot override the Constitutional rights of the persons who have been selected by a due process of selection by the Public Service Commission. The latter are persons who, being eligible to be appointed, have undergone a regular process of selection. They have been afforded an opportunity to seek employment along with other similarly placed and have been found to be eligible for appointment and are accordingly advised. Rights of persons temporarily appointed by way of stop gap arrangement cannot be read so as to defeat the Constitutional rights as otherwise it would defeat the rule of equal opportunity envisaged under Article 16(1) of the Constitution and the provisions of I Article 320 which enables the Public Service Commission to resort to regular recruitment in order to secure that opportunity to the applicants.
To perpetuate temporary appointment on the plea that otherwise Section 25H of the Industrial Disputes Act would contravene would be to nullify the Constitutional protection given under Article 16(4) of the Constitution by making the rules of reservation in the Kerala State and Subordinate Services Rules to backward classes as well as Scheduled Castes and Scheduled Tribes inapplicable. Such a result is certainly not envisaged and would certainly be unconstitutional. It is in this background that we have to read down the rights of the temporary employees particularly in relation to the provisions of Section 25H of the Industrial Disputes Act.
Therefore we are of the view that the rights of the temporary employees who, we have found are entitled to the protection of Chapter V-A of the Industrial Disputes Act, will not operate so as to defeat the rights of recruits advised by the Public Service Commission. In this view the petition is without any merit and is dismissed in limine.
Thus, the provisional hands appointed by the Corporations of Cochin and Calicut in these cases were liable to be ousted when Public Service Commission candidates were advised for appointment. They could claim no preferential or statutory rights over the Public Service Commission hands.
3. In fact in the appointment order issued to the petitioner in OP. No. 3776 of 1983 (Ext. P.1) it is specifically stated that she could continue in her post for a maximum period of one year from the date of the original appointment or till regular hands from Public Service Commission join duty whichever is earlier. They were, however, not given any notice, or compensation in lieu of notice, as contemplated under Section 25F of the Act. In OP. No. 3776 of 1983, (subject matter of W.A. No. 415 of 1983) the learned single Judge held that the petitioner therein was entitled to the protection of Section 25F of the Industrial Disputes Act, that retrenchment in violation of the mandatory provision of Section 25F was invalid and therefore directed her reinstatement in service. But the learned Judge protected the right of the PSC hands as well by stating 'Her continuance of service would be subject to the right of a regular hand advised by the PSC on reporting for duty'. The Corporation has filed the appeal.
4. O.P. No. 6027 of 1983, taken up in appeal in W.A. No. 540 of 1983, was dismissed in limine by another learned Judge holding that the decision in Viswambharan's case 1983 KLT 635 'makes amply clear that no rights under the Industrial Disputes Act can be urged against a recruit advised by the Public Service Commission for appointment. As soon as the PSC. hand comes in, whatever be the temporary employee's right under the Industrial Disputes Act, he will have to step down and no provision in the Industrial Disputes Act could be urged against the immediate taking of service by a person advised by the Public Service Commission'. Later on, it was also added 'I am sure if any provisional hands are to be appointed, the respondents will duly take into account the petitioners' right under Section 25H of the Industrial Disputes Act'. The provisional employees have come up in appeal.
5. The counsel for the appellants in W.A. No. 540 of 1983 contended that the statutory right under Chapter V-A of the Act cannot be destroyed by any plea in favour of the Public Service Commission hands and thus the decision in Viswambharan's case requires re-consideration. We are not inclined to agree.
6. The right of a Public Service Commission hand to be absorbed in service retrenching a provisional hand has been recognised and accepted by the Supreme Court in Narayani and Ors. v. State of Kerala and Ors. 1984 KLT 17. The Supreme Court said: 'These writ petitions involve a human problem which has more than one facet. On one hand are the difficulties in which the petitioners find themselves as a result of the impending termination of their services. On the other are the exigencies of service which require that persons who have been selected by the PSC on merits must take charge of their posts' and proceeded to hold 'We are of the opinion that the best solution, in the circumstances of the case, is to ask and allow the petitioners to appear for the next PSC. examination' and clarified still further thus: 'We would like to make it clear that the order which we are passing today will not confer any right on the petitioners and others who are similarly situate to continue in service, or of being selected by the PSC, otherwise than in accordance with the relevant rules and regulations'. Viswambharan's case should hold the field.
7. The next contention urged by the counsel for the appellants in both the appeals is that in any case, they are entitled to the protection of Section 25F of the Industrial Disputes Act, even if they have to give way to the PSC hands. As we read the decision in Viswambharan's case, it cannot be understood as lying down that no provision of the Industrial Disputes Act will be applicable to a provisional employee when he is being replaced by a PSC hand. The Division Bench was only considering the impact of Section 25H of the Industrial Disputes Act on the right of the PSC hands to displace the provisional employees, the workmen under the Act, and to avoid a consequence which would be plainly unconstitutional. Section 25H was thus read down so far as the temporary employees were concerned. In fact the learned single Judge in OP. No. 3776 of 1983 (W.A. No. 415 of 1983) did proceed on the assumption that the provisional employees are entitled to the protection of Section 25F of the Act.
8. We are clear that, even when a provisional employee, a workman under the Industrial Disputes Act, is retrenched, to give way to a candidate selected and advised by the Public Service Commission, he can only be removed from service after complying with the conditions prescribed under Section 25F. To this extent we agree with the reasoning of the learned single Judge in the above OP.
9. Admittedly, the provisions of Section 25F were not complied with, when the provisional employees in these cases were retrenched, to provide for PSC hands. It is therefore vehemently contended that the retrenchment is invalid and therefore they have to be reinstated. They mainly relied on the following observations of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha A.I.R. 1968 S.C. 610:
On a plain reading of Section 25F(b) it is clear that the requirement prescribed by it is a condition precedent for the retrenchment of the workman. The section provides that no workman shall be retrenched until the condition in question has been satisfied. It is difficult to accede to the argument that when the section imposes in mandatory terms a condition precedent, non-compliance with the said condition would not render the impugned retrenchment invalid.
* * *That being so, failure to comply with the said provision renders the impugned orders invalid and inoperative.
Even if the retrenchment is invalid, are the petitioners automatically entitled to be reinstated on the ground that the retrenchment was. On this question, two decisions of the Supreme Court seem to be in point.
10. In State Bank v. M.S. Monay : (1976)ILLJ478SC it was observed thus:
What follows? Had the State Bank known the law and acted on it, half-a-month's pay would have concluded the story. But that did not happen. And now, some years have passed and the Bank has to pay, for no service rendered. Even so, hard cases cannot make bad law. Reinstatement is the necessary relief that follows. At what point? In the particular facts and circumstances of this case, the respondent shall be put back where he left off, but his new salary will be what he would draw were he to be appointed in the same post today de novo. As for benefits, if any, flowing from service he will be ranked below all permanent employees in that cadre and will be deemed to be a temporary hand upto now. He will not be allowed to claim any advantages in the matter of seniority or other priority inter se among temporary employees on the ground that his retrenchment is being declared invalid by this Court. Not that we are laying down any general proposition of law, but make this direction in the special circumstances of the case. As for the respondent's emoluments he will have to pursue other remedies, if any.
11. Subsequently in S.K. Varma v. Industrial Tribunal-cum-Labour Court, New Delhi 1981-I L.L.J 386 at 389. Mr. Justice Chinnappa Reddy speaking for the court observed thus:
Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions. 'Void initial', 'invalid and inoperative' or call it what you will, the workman and the employer are primarily concerned with the consequence of striking down the order of termination of the services of the workman. Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the Court to make appropriate consequential orders. The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The Court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the Court may mould the relief but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardships may be caused to an employer but we must remember that, more often man not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted.
Mr. Justice Pathak, agreeing added thus:
Ordinarily, a workman who has been retrenched in contravention of the law is entitled to reinstatement with full back wages and that principle yields only where the justice of the case in the light of the particular facts indicates the desirability of a different relief.
12. An employer in an industry is statutorily compelled to comply with die conditions prescribed in Section 25F of the Industrial Disputes Act, when a provisional employee is outstanding-retrenched from service to give room to a candidate selected and advised by the PSC. The employer has thus absolutely no choice in the matter, no alternative and no preference. To ignore Section 25F is thus to invite restitution and reinstatement. But, if the matter reaches court, the court may exercise a cautious discretion to deny reinstatement in certain exceptional cases, in its anxiety to be fair, reasonable and just in the larger interests of the industry.
13. With these principles in the background, let us consider the peculiar circumstances of these two cases. The PSC hands reach the door steps to be admitted in service. The provisional hands then have to vacate their seats. Orders are passed terminating the services of the provisional employees and appointing the PSC hands. The problem of the PSC recruits is a problem peculiar to government servants and other State Corporations to whom the PSC rules for selection and advice apply. The decision of this Court in Viswambharan's case was understood by many, as indeed by one learned Judge in O.P. No. 6027 of 1983, that in such cases, retrenchment was automatic and no provision in the Industrial Disputes Act came to the rescue of the provisional hands as against PSC recruits. If tinder these circumstances, the Corporation in these cases employed the PSC hands and ousted the provisional hands without issuing a prior notice or paying compensation in lieu thereof, reinstatement, when there is no place for the provisional employees, would cause grave injustice. The vestige of discretion available to the court in such cases has thus to be exercised, where the justice of the case indicates the desirability of an alternative relief.
14. Considering all circumstances, in the interests of justice, we direct that the Corporations of Cochin and Calicut will consider whether the petitioners in these two writ petitions satisfy the service qualifications prescribed under Section 25F of the Industrial Disputes Act and if so, pay them the entire compensation due to them under the said provision within one month of the receipt of this judgment. Disputes, if any arising later, regarding the correctness of the amount may be raised by the petitioners before the appropriate authorities according to law. We note the submission of the counsel that in OP. No. 6027 of 1983 some of the petitioners were paid compensation under Section 25F(2) after the OP was disposed of. The payments already made can be taken into account for fixing the total amount payable under Section 25F (1) and (2). The petitioners need not be reappointed and continued in service. We, however, make it clear that in the absence of PSC hands, these Corporations will fill future vacancies complying with the provisions in Chapter V-A of the Industrial Disputes Act respecting the claims of these writ petitioners as well.
The appeals are disposed of accordingly. No costs.
Immediately after pronouncement of the judgment counsel for the respondent in W.A. No. 415 of 1983 made an oral application under Article 134A of the Constitution for a Certificate under Article 133 for preferring an appeal to the Supreme Court. We are not satisfied that the case involves a substantial question of law of general importance which, in our opinion, needs to be decided by the Supreme Court. We reject the application.