Mallika Rajam Vs. State of Kerala

Decided On : Jul-01-2002

Court : Kerala

Notice (8): Undefined index: topics [APP/View/Case/meta.ctp, line 36]
Code Context


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			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2 and 25F; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 21',
			'appealno' => 'O.P. No. 15419 of 2002',
			'appellant' => 'Mallika Rajam',
			'authreffered' => '',
			'casename' => 'Mallika Rajam Vs. State of Kerala',
			'casenote' => 'Labour and Industrial - retrenchment - Sections 2 (oo) and 25 F of Industrial Disputes Act, 1947, Rule 2.54 of Service Rules and Article 21 of Constitution of India - petitioners challenged impugned Orders terminating them on ground that same violated Rule 2.54 and Section 25 F - impugned Order not falling in any of exemptions enumerated in Section 2 (oo) and thus petitioner's termination was retrenchment - termination made in violation of 25 F void ab initio - termination made in violation of Rule 2.54 illegal - right to life guaranteed under Article 21 includes right to livelihood to which petitioners deprived without requisite notice - held, impugned Order quashed as being null and void.


 - LABOUR  & SERVICES
Appointment: [V.K. Bali, CH, P.R. Raman & S. Siri Jagan, JJ] Post of Pharmacist in Homeopathy Subordinate Service -  Special Rules for Kerala Homeopathy Subordinate Service Rules, 1999 introducing new qualifications  Vacancy arising subsequent to coming into force of the said special rules  Held, Vacancies have to be filled up only in accordance with Special Rules, 1999. Unfilled vacancy that had arisen prior to amendment cannot be filled up by candidate not possessing amended qualifications prescribed by Special Rules. State Government has the power to frame or amend the Special Rules with or without retrospective effect. Mohanan K.R. & anr vs Director of Homeopathy, Kerala Homeopathy Services, Trivandrum & ors. -  The management failed to control the labour forces. The centre failed to meet its operational expenses including salary to the employees. The study report found that the over staffing has made the normal functioning of the unit impossible and has recommended for cutting the employees strength in various categories. The 20th Governing Body meeting held on 4.3.2002, examined the views of the committee and decided to implement the measures recommended by the three member committee wherever possible. The ceatre has no option other than to terminate these excess employees to safeguard the best interest of the institution and its remaining employees. P5 will clearly show that the excess work force is being retrenched, according to seniority. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, can be validated by additional grounds later brought out. The Reprographic Centre as well as the Government accepted this Report. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. ' 20. Here, at best what can be alleged is only a case of mismanagement. 1635 of AIR): It is a well-settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. Now it is well settled that the violation of the principles of natural justice will amount to the violation of the rights of the employee under Article 14 of the Constitution of India.',
			'caseanalysis' => null,
			'casesref' => 'Union of India v. Tulsiram Patel;',
			'citingcases' => '',
			'counselplain' => ' S. James Vincent, Adv.',
			'counseldef' => ' V.K. Beeran, Addl. Adv. and; B.S. Krishnan, Sr. Adv.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2002-07-01',
			'deposition' => 'Original petitions allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' K. Balakrishnan Nair, J.',
			'judgement' => '<p style="text-align: justify;">K. Balakrishnan Nair, J.</p><p style="text-align: justify;">1. The points which arise in all these cases being identical, they are heard together and disposed of by a common judgment.</p><p style="text-align: justify;">2. All the petitioners are employees of the Kerala State Audio Visual & Reprographic Centre, Thiruvananthapuram which is an autonomous Institution established by the Government as per its order dated 28.4.1992. It is a Society registered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act. Its Governing Body contains only Government Officials or their nominees. The Minister for Education of the State will be the Ex-officio Chairman and the Managing Director will be its Executive Director and Member Secretary. It is common case that the said Institution (hereinafter referred to as 'the Reprographic Centre') is amenable to the writ jurisdiction of this Court.</p><p style="text-align: justify;">3. All the petitioners were appointed in the Reprographic Centre and its various units during the years 2000 and 2001 on a regular basis as probationers. All of them have completed their period of probation. Some of the petitioners had earlier spells of temporary appointments also.</p><p style="text-align: justify;">4. The impugned order in all the Original Petitions is the order issued by the Reprographic Centre dated 31.5.2002 terminating the services of the petitioners and others who were found to be excess employees. The impugned order is extracted herein below for convenient reference;</p><p style="text-align: justify;">'Kerala State Audio-Visual and Reprographic Centre is an autonomous institution established by the Government of Kerala as per G.O. (MS) 73/92/H.Edn. dated 28.4.1992. The. functioning of the institution was satisfactory in the earlier stages. But later on, it ran into huge losses. During the years 2000 and 2001,938 persons were seen appointed against the notified vacanciesofonly 186. (Two notifications issued on 5.4.2000 and 13.4.2000No.KSAVRC/2221/2000 dated 5.4.2000 and KSAVRC/2247/00 dated 13.4.2000 respectively). During the months of September and October, 2001, there was labour unrest and the centre became virtually bankrupt. The management failed to control the labour forces. The centre failed to meet its operational expenses including salary to the employees.</p><p style="text-align: justify;">In these circumstances, as per G.O.(MS)/144/2001/H.Edn.dated 22.10.2001 the Govemment of Kerala, appointed a three membercommittee consisting of Sri. G. Jayasankar, Govt. Engineering College, Barton Hill, Thiruvananthapuram, Sri. Mathew V. John, Superintendent, Government Presses, Thiruvananthapuram and Sri. S.UpendranNair,Retd.Addl. Secretary to Govt. to study the functioning of Kerala State Audio Visual and Reprographic Centre and to suggest the measures to uplift the sinking institution. The committee conducted the study in depth and suggested certain measures to revive the unit and its report was submitted during the month of March, 2002. In the study report various measures were suggested for the sustenance and growth of the institution. The study report found that the over staffing has made the normal functioning of the unit impossible and has recommended for cutting the employees strength in various categories.</p><p style="text-align: justify;">The 20th Governing Body meeting held on 4.3.2002, examined the views of the committee and decided to implement the measures recommended by the three member committee wherever possible. As part of the revival measures, the Governing Body decided to terminate the excess staff in the institution wherever necessary, since the appointment of that persons were totally unnecessary and unaffordable.</p><p style="text-align: justify;">After examining the committee's report and considering the present stage of the institution, as per the reference (2) the Gpvernment directed to terminate the services of excess staff in various categories. The ceatre has no option other than to terminate these excess employees to safeguard the best interest of the institution and its remaining employees. In each category, the junior most persons are to be terminated.</p><p style="text-align: justify;">In these circumstances, the following employees are terminated from the service of KeralaState Audio Visual and Reprographic Centre with effect from 1.6.2002. The names of theterminated employees are placed below in category wise.'</p><p style="text-align: justify;">5. From the impugned order, it would appear that the Reprographic Centre has appointed 938 persons against notified vacancies of 186. Therefore, there are excess staff in many categories. So, on the basis of a study conducted by a committee appointed by the Government, it was resolved to terminate the excess employees. The Government have also directed the termination of employees who are in excess of the requirement of the Reprographic Centre. So, the petitioners and others were terminated. The impugned order was published in the Notice Board of the Reprographic Centre on 31.5.2002 and the doors of the Centre were closed before them on the very same day without any notice or warning, and the petitioners and similarly placed employees were rendered unemployed.</p><p style="text-align: justify;">6. The petitioners challenge the impugned order dated 31.5.2002 mainly on three grounds. The first ground of attack is that the petitioners are being terminated in violation of Rule 2.54 of the Kerala State Audio Visual Reprographic Centre Rules on Service Conditions of Employees and Allied Matters. The said Rules in the Service Rules applicable to the petitioners reads as follows:</p><p style="text-align: justify;">'2.54. Termination of Service otherwise than as a Disciplinary Measure:</p><p style="text-align: justify;">The services of an employee who is on probation may be terminated by his being given fourteen days notice or in default of such, notice payment of fourteen days pay.</p><p style="text-align: justify;">Employees who are regularised may be retrenched from service on abolition of posts or on discontinuance of shift work but such retrenchment from service will be in the order of juniority of employee holding the post in aparticular category. Such discharge of a regularised employee shall be after giving notice of one month or wages in lieu thereof. If a shift is restarted, the retrenched employee will have a claim for notice and reappointment.</p><p style="text-align: justify;">Provided that, if there is a lower post on which the employee holds a lien he will be reverted to such lower post instead of being retrenched in the order of juniority and no compensation will be payable in respect of the post from which an employee is reverted for want of vacancy.'</p><p style="text-align: justify;">So, notice or payment of notice pay is obligatory for retrenchment.</p><p style="text-align: justify;">7. The second ground of attack is that their termination from service is retrenchment in terms of Section 2(oo) of the Industrial Disputes Act and the retrenchment has been made in violation of Section 25F of the said Act. The third ground of attack is that the impugned order has been passed without notice or hearing to the petitioners. The petitioners have raised other grounds also in the Original Petitions. In some cases, they dispute the finding that they are in excess. In few cases, they contend that seniority in certain categories has not been followed for ordering retrenchment. It is also pointed out in certain cases that in some categories, the appointments were strictly in accordance with the numbers notified and therefore, the stand of the management that employees appointed in excess of the notified vacancies alone are retrenched, is not correct.</p><p style="text-align: justify;">8. The Reprographic Centre has filed a counter affidavit in O.P. No. 14472/2002 and copies of the same have been served on the counsel appearing in most of the cases. O.P. No. 14472/2002 is treated as the main Original Petition for the purpose of reference to the Exhibits. Exts. P1 to P4 are appointment orders of the petitioners dated 5.3.2001. Ext. P5 is the impugned order dated 31.5.2002. In the counter affidavit it is stated that 'the day-to-day expenses towards the salaries and wages of the employees for running the centre are to be met from the income generated from the commercial activities undertaken by the Centre itself.' It is also pointed out that 'no portion of the grant received from the Government can be expended towards payment of salaries, wages etc.' The reasons for termination of the services of the employees given in the impugned order are reiterated in the counter affidavit. It is submitted that the strength of staff is in excess of requirement and every month the Reprographic Centre requires Rs. 50 Lakhs for payment of salaries and wages. Of late, it was not able to meet its commitment to pay wages which has resulted in unrest among the employees. Therefore, the Government by G.O. (MS) No. 144/2001/H.Edn. dated 22.10.2001 appointed a committee to study on the functioning of the Centre and to suggest ways and means for reviving the Centre. The committee submitted Ext. R2(a) Report in March, 2002. It is submitted that the Governing Body Meeting held on 4.3.2002 discussed Ext. R2(a) Report in detail. It was found that during the years 2000 and 2001,938 employees were appointed. Therefore, the same has resulted in creation of surplus in the work force. In the meantime, the Government also considered the Report and directed the Centre by G.O. (MS) No. 55/2002/H.Edn. dated 30.5.2002 to terminate the surplus staff. 499 employees were found to be in excess. Therefore, the Reprographic Centre ordered the termination of the excess staff and it is submitted that 433 probationers are terminated from service. Of the said 433 employees, 17 had already left the service of the Reprographic Centre and therefore only 416 are affected by the retrenchment.</p><p style="text-align: justify;">9. In the counter affidavit, it is also averred that appointments were made in excess of the notified vacancies and therefore, the application of the principles of natural justice is not attracted in this case. In the counter affidavit, it is asserted that 'no new recruitment will be made in the Centre in any of the posts in which termination is effected or in any of the existing posts'. It is also submitted that the Deputy Accountant General (Audit) has pointed out that the recruitments made in excess were irregular and unjustifiable and it has resulted in creation of avoidable expenditure to, the Centre,</p><p style="text-align: justify;">10. I heard both sides. The petitioners mainly relied on their three contentions mentioned earlier that their termination is made in violation of R. 2.54 of their Service Rules, that the same is ordered in violation of the Section 25F of the Industrial Disputes Act and that the impugned,order is issued in violation of the principles of natural justice. The impugned order and the Report of the Committee basing on which the termination has been ordered will show that the Centre is retrenching excess hands in accordance with the seniority in each category and they will get re-appointment as and when vacancies arise. Apparently, there is nothing wrong with the said stand. Every industry has a right to retrench excess workmen having regard to its requirement. But the termination or retrenchment has to be done in accordance with law after issuing notice or notice pay. But in the case at hand, what was done was, on 31.5.2002, suddenly the petitioners were thrown out of employment without any notice or notice pay. Confronted with this indefensible position, the learned counsel for the Reprographic Centre submitted that the appointments having been made in excess of the notified vacancies are void and, therefore, for the termination of such employees, notice is not required.</p><p style="text-align: justify;">11. It is common case of both sides that the Reprographic Centre is an 'industry' as defined under Section 2(j) of the Industrial Disputes Act. The respondents also did not dispute that if the termination of the petitioners is retrenchment, then the same is made in violation of Section 25R But the learned counsel for the Reprographic Centre would submit that the appointments having been made in excess of the notified strength, no notice is required for their termination. The pleading in this regard is contained in paragraph 9 at page 10 of the counter affidavit of the second respondent which reads as follows:</p><p style="text-align: justify;">'Appointments are also made much in excess of the notified vacancies. Therefore, as the law settled by the Hon'bie Supreme Court, application of the principles of natural justice is not attracted in this case.' </p><p style="text-align: justify;">12. But the learned counsel for the second respondent, the Reprographic Centre, went to the extent of stating that such appointments are void and, therefore, their termination is not retrenchment. An argument unsupported by the pleadings need not be examined by this Court. But still, I am examining that contention also on merits.</p><p style="text-align: justify;">13. The definition of 'retrenchment' is Section 2(oo) of the Industrial Disputes Act reads as follows:</p><p style="text-align: justify;">''retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-</p><p style="text-align: justify;">(a) voluntary retirement of the workman; or</p><p style="text-align: justify;">(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or</p><p style="text-align: justify;">(bb) termination of the service of a workman as a result of the non renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or</p><p style="text-align: justify;">(c) termination of the service of a workman on the ground of continued ill-health;'</p><p style="text-align: justify;">14. Termination of service for any reason whatsoever, except those covered by the enumerated exempted categories, is retrenchment. Normally, in common parlance, retrenchment is understood as removing the excess or chopping of the dead wood. But the Legislature has given the word an artificial meaning under the Industrial Disputes Act. Interpreting the said provision, the Supreme Court has gone to the extent of saying that if a probationer is terminated from service for the reason of his unsuitability, the same will amount to retrenchment (See the decision of the Supreme Court in Management of Karnataka State Transport Corporation v. Boraiah and Anr. (AIR 1983 SC 1320). A Constitution Bench of the Supreme Court in the decision in Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court (1990 (3) SCC 682) after analysing the entire decisions on the interpretation of Section 2(oo) defining 'retrenchment' has held as follows:</p><p style="text-align: justify;">'When we analyse the mental process in drafting the definition of 'retrenchment' in Section 2(oo) of the Act we find that firstly it is to mean the termination by the employer of the service of a workman for any reason whatsoever. Having said so the Parliament proceeded to limit it by including certain types of termination, namely, termination as a punishment inflicted by way of disciplinary action. The other types of termination excluded were (a) voluntary retrenchment; or (b) retrenchment of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation on that behalf; or (c) termination of service of a workman on the ground of continued ill health. Had the Parliament envisaged only the question of termination of surplus labour alone in mind, there would arise no question of excluding (a), (b) and (c) above. The same mental process was evident when Section 2(oo) was amended inserting another exclusion Clause (bb) by the Amending Act 49 of 1984, with effect from August 18, 1984, 'termination of the service of workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry of such contract being terminated under a stipulation in that behalf contained therein'.</p><p style="text-align: justify;">15. The ratio of the decision at paragraph 82 reads as follows:</p><p style="text-align: justify;">'Applying the above reasonings, principles and precedents, to the definition in Section 2(oo) of the Act, we hold that 'retrenchment' means me termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section'.</p><p style="text-align: justify;">From paragraph 1 of the said decision, it can be seen that Civil Appeal No. 3248/81 was one arising out of the termination of the workmen of the Corporation on the ground that the Chairman had no ppwer to appoint them. The Labour Court ordered their reinstatement treating their terrnination as retrenchment. The said Civil Appeal against the'award of the Labour Court was dismissed as evidentfrom paragraph 83 of the said decision.</p><p style="text-align: justify;">16. So, the termination of the service of the petitioners will be retrenchment, if it is not covered by any one of the five exemptions given in Section 2(oo), namely:</p><p style="text-align: justify;">1. Termination as a punishment in disciplinary action.</p><p style="text-align: justify;">2. Voluntaryretirement.</p><p style="text-align: justify;">3. Retirement on reaching superannuation.</p><p style="text-align: justify;">4. Termination on the expiry of the term provided in the contract of appointment.</p><p style="text-align: justify;">5. Termination owing to continued ill-health.</p><p style="text-align: justify;">The impugned order Ext. P5 is not covered by any of the exemptions enumerated above. Ext. P5 will clearly show that the excess work force is being retrenched, according to seniority. In view of the above authoritative pronouncement of the Constitution Bench of the Apex Court (1990 (3) SCC 682), even assuming that the petitioners are being retrenched for being appointed in excess of the notified vacancies, still their termination will be retrenchment. But, I feel that the respondents should not be permitted to contend that the petitioners are being retrenched for some other reason not mentioned in the impugned order. This point is covered by two Constitution Bench decisions of the Apex Court in Commissioner of Police v. Gordhandas Bhanji (AIR 1952 SC 16) and Mohinder Singh Gill v. Chief Election Commissioner (1978 (1) SCC 405). In the latter decision, the Supreme Court said:</p><p style="text-align: justify;">'When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shapeof affidavit orotherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, can be validated by additional grounds later brought out.' </p><p style="text-align: justify;">17. In the case at hand, the impugned order in unambiguous terms states that it is issued for terminating the excess staff (see the underlined portions in the impugned order quoted hereinabove). Therefore, going by the interpretation given to the retrenchment by the Supreme Court, the termination of the employees is retrenchment. Even assuming it is for some other reason as contended by the second respondent, then also it is retrenchment.</p><p style="text-align: justify;">18. Apart from the statements in the impugned order, paragraph 6.3 of Ext. R2(a) also says that the termination is to get rid of the surplus staff and the retrenched staff will be taken back subject to requirement on the basis of their present seniority. The relevant portion in paragraph 6.3 at page 39 of Ext. R2(a) (running page 54 of the counter affidavit), is extracted below:</p><p style="text-align: justify;">'Now KSAVRC has no otheroption. but to terminate the services of the surplus staff paving their due salaries and other claims as per rules in force. This is inevitable, as the employees are not at fault and they cannot be penalised for no fault of theirs. As suggested in para 3-11 Government may consider making separate arrangements to look into this aspect.</p><p style="text-align: justify;">As and when the organisation go for development, after recovering from the present crisis,by following the restructuring and adopting modified code of operations, the retrenched staffshall be taken back on the basis of their present seniority. The KSAVRC shall maintain properrecords/registers to monitor this'.</p><p style="text-align: justify;">The above portion of the Report will show that the termination is retrenchment and the staff so terminated is treated as retrenched staff to be absorbed in future vacancies. The Reprographic Centre as well as the Government accepted this Report. Therefore, the contention of the second respondent that the termination of the services of the petitioners is not retrenchment, is plainly perverse and misconceived.</p><p style="text-align: justify;">19. The learned counsel appearing for the second respondent in support of his contention that as the termination is made on the ground that the appointments made were in excess of the notified vacancies, no notice is required, relied on the decisions of the Supreme Court dealt with herein below. The decision in State of Bihar and Ors. v. The Secretariat Assistant Successful Examinees Union (1994 (1) SCC 126) relied on by the second respondent deals with the appointment to the post of Assistant in the Government Secretariat. It is not a case arising under the Industrial Disputes Act and, therefore, will not apply to the facts of the case. In the decision reported in Premsingh and Ors. v. Haryana State Electricity, Board, 1996 (4) SCC 319, the Supreme Court held as follows:</p><p style="text-align: justify;">'From the above discussion of the case-law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the Court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case'.</p><p style="text-align: justify;">Even assuming there is some irregularity in making appointments to more vacancies than notified, even then, their termination will amount to retrenchment. There is nothing in this decision against the said proposition. It is not considered in the said decision whether the termination of such employees will amount to retrenchment. The decision in Ashwani Kumar v. State of Bihar (1997 (2) SCC 1) deals with the appointment of candidates in an unauthorised manner made against non-existent vacancies in Government service. It was held that such appointments were void. The said decision has no application to the facts of the present case. In the case at hand, the appointment was made by the Governing Body to posts created by them. There were vacancies in posts created by the competent authority while the petitioners were appointed. This is evident from paragraph 3.10 at page 8 (running page 23) of Ext. R2(a) Report which reads as follows:</p><p style="text-align: justify;">'As per Government approved Memorandum of Association, the Governing Body is empowered to create posts and explicitly no Government permission isenvisaged. The Executive Committee and Governing Body which had met multiple times during this period and given approval to these large scale appointments indicate that there was no effective mechanism ineffecting judicial control both at administrative and financial aspects.' </p><p style="text-align: justify;">20. Here, at best what can be alleged is only a case of mismanagement. But, in Ashwani Kumar's case, the appointments were made to non-existing vacancies, unbacked by budgetary provision or the incumbents were appointed to 'imaginary or shadow vacancies'. So, this decision can in no way be pressed into service to support the termination of the petitioners. The learned counsel also relied on the decision of this Court reported in Koodaranhi Service Co-operative Bank v. Lissy (1993 (2) KLT 706). It was a case where an appointment was made against the statutory Rules. The service of the employee was terminated upon instructions issued by the officers of the Department of Co-operation. The Society had no option, but to terminate her from service. So, this Court said, since the termination was not on the basis of any voluntary act of the employer, the termination cannot be said to be retrenchment. In the case at hand, there is no violation of any statutory provision in the appointment of the petitioners and therefore, the said decision will not be applicable to the facts of this case. The learned counsel for the 2nd respondent also relied on the observations of the learned Author O.P. Malhotra in his 'The Law of Industrial Disputes' (fifth Edition) Vol. I (at page 336). It is observed by the learned Author that any appointment contrary to law will be void and therefore, the termination of illegal appointment will not be retrenchment and he states that the view taken by the Kerala High Court in Eranallor Service Co-operative Bank Ltd. v. Labour Court (1986 KLT 801 and 1986 (2) LLJ 492) is the correct view. The conclusion of the Author reads as follows:</p><p style="text-align: justify;">'Thus, though the definition of 'retrenchment' comprehends termination of service, it is not that every termination of service is retrenchment. In other words, every case of discharge simplicitor may not be a case of retrenchment, though there is preponderance of judicial opinion, that every termination of service not falling in any of the exception of Section 2(oo) would amount to retrenchment'.</p><p style="text-align: justify;">The said opinion of the learned Author cannot stand with the authoritative pronouncement of the Supreme Court in the Punjab Land Development & Reclamation Corporation's case (1990 (3) SCC 682). The learned Author while making the above quoted observation, has not referred to this decision of the Constitution Bench of the Apex Court. Apart from that, no one has a case that the appointment of the petitioners is contrary to any statutory provision. Therefore, the contention of the second respondent cannot be accepted. As stated earlier, the second respondent does not have any case either in the impugned order or in Ext. R2(a) report that the appointments were contrary to law and therefore void; and for that reason, the terminations are ordered. But, to be fair to the said respondent, this Court has dealt with its above said contention elaborately.</p><p style="text-align: justify;">21. In view of the above legal position, it can be safely concluded that the termination of the petitioners is retrenchment. Therefore, the termination having been made in violation of the mandatory provisions in Section 25F of the Industrial Disputes Act, is void ab initio. Nobody has disputed the proposition that if the termination is retrenchment, then it is void in view of the violation of the provisions of Section 25F of the Industrial Disputes Act. The petitioners were not given notice or notice pay in lieu of notice or retrenchment compensation. So, the termination is void ab initio. The Apex Court has consistently taken the view that the provisions of Section 25F is mandatory and any violation thereof will render the retrenchment void ab initio (see the decisions of the Apex Court in 'Karnataka State Road Transport Corporation v. M. Boraiah (AIR 1983 SC 1320), Gammon India Ltd. v. Niranjan Das (1984 (1) SCC 509), Workmen v. Food Corporation of India (AIR 1985 SC 670X Narotam Chopra v. Presiding Officer (1989 (2) Supp. (2) SCC 97), Rolston John v. Central Government Industrial Tribunal (AIR 1994 SC 131), Lal Mohamed v. Indian Railway Construction Co. Ltd. (AIR 1999 SC 355), Mohanlal v. Bharath Electronics Ltd. (1981) SC 1253), Man Mohan Rastogi v. Labour Court (AIR 1984 SC 502).</p><p style="text-align: justify;">22. Apart from the violation of Section 25F, the petitioners have been sent out in violation of R. 2.54 of their Service Rules. Notice or notice pay is mandatory under the said Rule. When the employer claims that its actions shall be governed by certain norms in the matter of termination of the services of the employees, it should be compelled to follow those norms on pain of invalidation of the actions taken in violation of them (See the decision of the Apex Court in B.S. Minnas v. Indian Statistical Institute (AIR 1984 SC 363). In the said decision, the Supreme Court held as follows:</p><p style="text-align: justify;">'22. The next question that arises for consideration is whether the appointment ofrespondent No. 4 as Director of respondent No. 1 is illegal because of non-compliance with byelaw 2. Bye-law 2 does require that before appointment, the vacancy in the post of Director shouldbe suitably publicised. In the instant case, it is admitted on both sides that no publicitywhatsoever was given in respect of the vacancy. The contention of Shri Garg, however, is thatthe bye-law having no force of statute, non-compliance with its requirement cannot in any wayaffect the appointment of respondent No. 4 as Director of respondent No. 1. Shri Tarkuhde,however, contended that assuming that the bye-law is not statutory, even so respondent No. 1 wasbound to comply with it. In support of his contention he strongly relied upon Ramana DayaramShetty v. International Airport Authority of India (1979) 3 SCR 1014; (AIR 1979 SC 1628). TheCourt in that case held (At p. 1635 of AIR):</p><p style="text-align: justify;">It is a well-settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciatedby Mr. Justice Frankfurter in Vitarelli v. Seaton, ((1959) 359 US 535: 3 L.Ed. 2d 1012) where the learned Judge said:</p><p style="text-align: justify;">An executive agency must be rigorously held to the standards by which it professes itsaction to be judged. Accordingly, if dismissalfromemploymentis based on a defined procedure,even though generous beyond the requirements that bind such agency, that procedure mustbe scrupulously observed. This judicially evolved rule of administrative law is now firmlyestablished and, if I may add, rightly so. He that takes the procedural sword shall perish withthat sword'. The aforesaid principle laid down by Mr. Justice Frankfurter in Vitarelli v. Seaton,(1959) 3 Law Ed. 2d,lQl2 has be,en accepted as applicable in India by this Court in A.S. Ahluwalia v. Punjab State, (1975) 3 SCR 82: (AIR 1975 SC 984) and in subsequent decision given in Sukhdev v. Bhagatram, (1975) 3 SCR 619: (AIR 1975 SC 1331), Mathew J. quoted the above-referred observation of Mr. Justice Frankfurter with approval.</p><p style="text-align: justify;">23. In view of the pronouncement of this Court on the point it must be held to be obligatory on the part of respondent No. 1 to follow the bye-laws, if the bye-laws have been framed for the conduct of its affairs to'avoid arbitrariness. Respondent No. 1 cannot, therefore, escape the liability for not following the procedure prescribed by bye-law 2.'</p><p style="text-align: justify;">Therefore, for the violation of the provisions contained in R. 2.54 of the Service Rules, the termination of the services of the petitioners is illegal.</p><p style="text-align: justify;">23. Apart from that, whatever be the reasons for the termination of the services of the petitioners who were appointed regularly on probation and who have completed their period of probation, going by the universally accepted principles of natural justice, the sudden termination of their services without notice or hearing, is void ab initio. The termination of their services affects their livelihood. The right to life guaranteed under Article 21 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> will include the right to livelihood also. (See the decisions of the Apex Court in Olga Tellis v. Municipal Corporation of Bombay (AIR 1986 SC 180) and Delhi Transport Corporation v. DTC Mazdoor Congress (AIR 1991 SC 101). In the latter decision, the Supreme Court (at paragraph 223) said:</p><p style="text-align: justify;">'The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them'.</p><p style="text-align: justify;">24. In view of the above legal position, since the right to livelihood of the petitioners was deprived without notice, the said action is void ab initio. Now it is well settled that the violation of the principles of natural justice will amount to the violation of the rights of the employee under Article 14 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. See the decision of the Apex Court in Union of India v. Tulsiram Patel (1985 (3) SCC 398). In the said decision, it was held as follows:</p><p style="text-align: justify;">'95. The principles of natural justice have thus come to be recognised as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject matter of that article. Shortly put, the syllogism runs thus: violation of a ruleof natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of Article 14: therefore, a violation of a principle of natural justice by a State action is a violation of Article 14'.</p><p style="text-align: justify;">So, for this reason also, the impugned order is void.</p><p style="text-align: justify;">25. A faint attempt was made by the second respondent to suggest that it has acted according to the direction of the Government. Every Government worth its name is bound to issue directions to industries under its control to run them properly. The direction to terminate excess staff is one such direction. But the Government cannot direct and have not directed the Reprographic Centre to terminate the services of the petitioners illegally. The Centre was bound to act in accordance with law while implementing the directions of the Government. Even Ext. R2(a) Report based on which the decision was taken by the Reprographic Centre says that the workers should be paid the dues at paragraph 6.3 quoted above. It is said:</p><p style="text-align: justify;">'Now KSAVRC has no other option, but to terminate the services of the surplus staff paying their due salaries and other claims as per rules in Force.' </p><p style="text-align: justify;">Therefore, the Reprographic Centre should have acted in accordance with law in terminating the surplus staff.</p><p style="text-align: justify;">26. The petitioners have a case that the finding in Ext. R2(a) and in Ext. P5 that they are surplus is unsustainable. This is a disputed question of fact and the contentions of both sides on this point are kept open.</p><p style="text-align: justify;">27. For all the above reasons, Ext. P5 is quashed as being null and void. The petitioners are deemed to be in service and they will be entitled to all consequential benefits. But, this will not stand in the way of the Reprographic Centre terminating the excess staff in accordance with law. Needless to say, in case the services of the petitioners are not needed, their reinstatement need only be notional, not physical, for completing the formalities for retrenching them in accordance with law. But, the employees will be entitled to all monetary benefits for the period they are kept out of service till they are validly retrenched. It is also clarified that if there are any non-workmen among the employees, they can be retrenched by following the procedure under R. 2.54 of the Service Rules. In other words, in their case, the procedure under Section 25F of the Industrial Disputes Act need not be followed.</p><p style="text-align: justify;">The Original Petitions are allowed as above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[2002(95)FLR1042]',
			'ratiodecidendi' => '',
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			'sub' => 'Labour and Industrial',
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		)
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$title_for_layout = 'Mallika Rajam Vs. State of Kerala Semantic Analysis'
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		(int) 0 => '20th',
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		(int) 2 => ''The Law of Industrial Disputes' (fifth Edition'
	),
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		(int) 0 => 'two Constitution Bench'
	),
	'EVENT' => array(
		(int) 0 => 'KLT 801 and'
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$desc = array(
	'Judgement' => array(
		'id' => '727227',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2 and 25F; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 21',
		'appealno' => 'O.P. No. 15419 of 2002',
		'appellant' => 'Mallika Rajam',
		'authreffered' => '',
		'casename' => 'Mallika Rajam Vs. State of Kerala',
		'casenote' => 'Labour and Industrial - retrenchment - Sections 2 (oo) and 25 F of Industrial Disputes Act, 1947, Rule 2.54 of Service Rules and Article 21 of Constitution of India - petitioners challenged impugned Orders terminating them on ground that same violated Rule 2.54 and Section 25 F - impugned Order not falling in any of exemptions enumerated in Section 2 (oo) and thus petitioner's termination was retrenchment - termination made in violation of 25 F void ab initio - termination made in violation of Rule 2.54 illegal - right to life guaranteed under Article 21 includes right to livelihood to which petitioners deprived without requisite notice - held, impugned Order quashed as being null and void.


 - LABOUR  & SERVICES
Appointment: [V.K. Bali, CH, P.R. Raman & S. Siri Jagan, JJ] Post of Pharmacist in Homeopathy Subordinate Service -  Special Rules for Kerala Homeopathy Subordinate Service Rules, 1999 introducing new qualifications  Vacancy arising subsequent to coming into force of the said special rules  Held, Vacancies have to be filled up only in accordance with Special Rules, 1999. Unfilled vacancy that had arisen prior to amendment cannot be filled up by candidate not possessing amended qualifications prescribed by Special Rules. State Government has the power to frame or amend the Special Rules with or without retrospective effect. Mohanan K.R. & anr vs Director of Homeopathy, Kerala Homeopathy Services, Trivandrum & ors. -  The management failed to control the labour forces. The centre failed to meet its operational expenses including salary to the employees. The study report found that the over staffing has made the normal functioning of the unit impossible and has recommended for cutting the employees strength in various categories. The 20th Governing Body meeting held on 4.3.2002, examined the views of the committee and decided to implement the measures recommended by the three member committee wherever possible. The ceatre has no option other than to terminate these excess employees to safeguard the best interest of the institution and its remaining employees. P5 will clearly show that the excess work force is being retrenched, according to seniority. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, can be validated by additional grounds later brought out. The Reprographic Centre as well as the Government accepted this Report. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. ' 20. Here, at best what can be alleged is only a case of mismanagement. 1635 of AIR): It is a well-settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. Now it is well settled that the violation of the principles of natural justice will amount to the violation of the rights of the employee under Article 14 of the Constitution of India.',
		'caseanalysis' => null,
		'casesref' => 'Union of India v. Tulsiram Patel;',
		'citingcases' => '',
		'counselplain' => ' S. James Vincent, Adv.',
		'counseldef' => ' V.K. Beeran, Addl. Adv. and; B.S. Krishnan, Sr. Adv.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2002-07-01',
		'deposition' => 'Original petitions allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' K. Balakrishnan Nair, J.',
		'judgement' => '<p style="text-align: justify;">K. Balakrishnan Nair, J.</p><p style="text-align: justify;">1. The points which arise in all these cases being identical, they are heard together and disposed of by a common judgment.</p><p style="text-align: justify;">2. All the petitioners are employees of the Kerala State Audio Visual & Reprographic Centre, Thiruvananthapuram which is an autonomous Institution established by the Government as per its order dated 28.4.1992. It is a Society registered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act. Its Governing Body contains only Government Officials or their nominees. The Minister for Education of the State will be the Ex-officio Chairman and the Managing Director will be its Executive Director and Member Secretary. It is common case that the said Institution (hereinafter referred to as 'the Reprographic Centre') is amenable to the writ jurisdiction of this Court.</p><p style="text-align: justify;">3. All the petitioners were appointed in the Reprographic Centre and its various units during the years 2000 and 2001 on a regular basis as probationers. All of them have completed their period of probation. Some of the petitioners had earlier spells of temporary appointments also.</p><p style="text-align: justify;">4. The impugned order in all the Original Petitions is the order issued by the Reprographic Centre dated 31.5.2002 terminating the services of the petitioners and others who were found to be excess employees. The impugned order is extracted herein below for convenient reference;</p><p style="text-align: justify;">'Kerala State Audio-Visual and Reprographic Centre is an autonomous institution established by the Government of Kerala as per G.O. (MS) 73/92/H.Edn. dated 28.4.1992. The. functioning of the institution was satisfactory in the earlier stages. But later on, it ran into huge losses. During the years 2000 and 2001,938 persons were seen appointed against the notified vacanciesofonly 186. (Two notifications issued on 5.4.2000 and 13.4.2000No.KSAVRC/2221/2000 dated 5.4.2000 and KSAVRC/2247/00 dated 13.4.2000 respectively). During the months of September and October, 2001, there was labour unrest and the centre became virtually bankrupt. The management failed to control the labour forces. The centre failed to meet its operational expenses including salary to the employees.</p><p style="text-align: justify;">In these circumstances, as per G.O.(MS)/144/2001/H.Edn.dated 22.10.2001 the Govemment of Kerala, appointed a three membercommittee consisting of Sri. G. Jayasankar, Govt. Engineering College, Barton Hill, Thiruvananthapuram, Sri. Mathew V. John, Superintendent, Government Presses, Thiruvananthapuram and Sri. S.UpendranNair,Retd.Addl. Secretary to Govt. to study the functioning of Kerala State Audio Visual and Reprographic Centre and to suggest the measures to uplift the sinking institution. The committee conducted the study in depth and suggested certain measures to revive the unit and its report was submitted during the month of March, 2002. In the study report various measures were suggested for the sustenance and growth of the institution. The study report found that the over staffing has made the normal functioning of the unit impossible and has recommended for cutting the employees strength in various categories.</p><p style="text-align: justify;">The 20th Governing Body meeting held on 4.3.2002, examined the views of the committee and decided to implement the measures recommended by the three member committee wherever possible. As part of the revival measures, the Governing Body decided to terminate the excess staff in the institution wherever necessary, since the appointment of that persons were totally unnecessary and unaffordable.</p><p style="text-align: justify;">After examining the committee's report and considering the present stage of the institution, as per the reference (2) the Gpvernment directed to terminate the services of excess staff in various categories. The ceatre has no option other than to terminate these excess employees to safeguard the best interest of the institution and its remaining employees. In each category, the junior most persons are to be terminated.</p><p style="text-align: justify;">In these circumstances, the following employees are terminated from the service of KeralaState Audio Visual and Reprographic Centre with effect from 1.6.2002. The names of theterminated employees are placed below in category wise.'</p><p style="text-align: justify;">5. From the impugned order, it would appear that the Reprographic Centre has appointed 938 persons against notified vacancies of 186. Therefore, there are excess staff in many categories. So, on the basis of a study conducted by a committee appointed by the Government, it was resolved to terminate the excess employees. The Government have also directed the termination of employees who are in excess of the requirement of the Reprographic Centre. So, the petitioners and others were terminated. The impugned order was published in the Notice Board of the Reprographic Centre on 31.5.2002 and the doors of the Centre were closed before them on the very same day without any notice or warning, and the petitioners and similarly placed employees were rendered unemployed.</p><p style="text-align: justify;">6. The petitioners challenge the impugned order dated 31.5.2002 mainly on three grounds. The first ground of attack is that the petitioners are being terminated in violation of Rule 2.54 of the Kerala State Audio Visual Reprographic Centre Rules on Service Conditions of Employees and Allied Matters. The said Rules in the Service Rules applicable to the petitioners reads as follows:</p><p style="text-align: justify;">'2.54. Termination of Service otherwise than as a Disciplinary Measure:</p><p style="text-align: justify;">The services of an employee who is on probation may be terminated by his being given fourteen days notice or in default of such, notice payment of fourteen days pay.</p><p style="text-align: justify;">Employees who are regularised may be retrenched from service on abolition of posts or on discontinuance of shift work but such retrenchment from service will be in the order of juniority of employee holding the post in aparticular category. Such discharge of a regularised employee shall be after giving notice of one month or wages in lieu thereof. If a shift is restarted, the retrenched employee will have a claim for notice and reappointment.</p><p style="text-align: justify;">Provided that, if there is a lower post on which the employee holds a lien he will be reverted to such lower post instead of being retrenched in the order of juniority and no compensation will be payable in respect of the post from which an employee is reverted for want of vacancy.'</p><p style="text-align: justify;">So, notice or payment of notice pay is obligatory for retrenchment.</p><p style="text-align: justify;">7. The second ground of attack is that their termination from service is retrenchment in terms of Section 2(oo) of the Industrial Disputes Act and the retrenchment has been made in violation of Section 25F of the said Act. The third ground of attack is that the impugned order has been passed without notice or hearing to the petitioners. The petitioners have raised other grounds also in the Original Petitions. In some cases, they dispute the finding that they are in excess. In few cases, they contend that seniority in certain categories has not been followed for ordering retrenchment. It is also pointed out in certain cases that in some categories, the appointments were strictly in accordance with the numbers notified and therefore, the stand of the management that employees appointed in excess of the notified vacancies alone are retrenched, is not correct.</p><p style="text-align: justify;">8. The Reprographic Centre has filed a counter affidavit in O.P. No. 14472/2002 and copies of the same have been served on the counsel appearing in most of the cases. O.P. No. 14472/2002 is treated as the main Original Petition for the purpose of reference to the Exhibits. Exts. P1 to P4 are appointment orders of the petitioners dated 5.3.2001. Ext. P5 is the impugned order dated 31.5.2002. In the counter affidavit it is stated that 'the day-to-day expenses towards the salaries and wages of the employees for running the centre are to be met from the income generated from the commercial activities undertaken by the Centre itself.' It is also pointed out that 'no portion of the grant received from the Government can be expended towards payment of salaries, wages etc.' The reasons for termination of the services of the employees given in the impugned order are reiterated in the counter affidavit. It is submitted that the strength of staff is in excess of requirement and every month the Reprographic Centre requires Rs. 50 Lakhs for payment of salaries and wages. Of late, it was not able to meet its commitment to pay wages which has resulted in unrest among the employees. Therefore, the Government by G.O. (MS) No. 144/2001/H.Edn. dated 22.10.2001 appointed a committee to study on the functioning of the Centre and to suggest ways and means for reviving the Centre. The committee submitted Ext. R2(a) Report in March, 2002. It is submitted that the Governing Body Meeting held on 4.3.2002 discussed Ext. R2(a) Report in detail. It was found that during the years 2000 and 2001,938 employees were appointed. Therefore, the same has resulted in creation of surplus in the work force. In the meantime, the Government also considered the Report and directed the Centre by G.O. (MS) No. 55/2002/H.Edn. dated 30.5.2002 to terminate the surplus staff. 499 employees were found to be in excess. Therefore, the Reprographic Centre ordered the termination of the excess staff and it is submitted that 433 probationers are terminated from service. Of the said 433 employees, 17 had already left the service of the Reprographic Centre and therefore only 416 are affected by the retrenchment.</p><p style="text-align: justify;">9. In the counter affidavit, it is also averred that appointments were made in excess of the notified vacancies and therefore, the application of the principles of natural justice is not attracted in this case. In the counter affidavit, it is asserted that 'no new recruitment will be made in the Centre in any of the posts in which termination is effected or in any of the existing posts'. It is also submitted that the Deputy Accountant General (Audit) has pointed out that the recruitments made in excess were irregular and unjustifiable and it has resulted in creation of avoidable expenditure to, the Centre,</p><p style="text-align: justify;">10. I heard both sides. The petitioners mainly relied on their three contentions mentioned earlier that their termination is made in violation of R. 2.54 of their Service Rules, that the same is ordered in violation of the Section 25F of the Industrial Disputes Act and that the impugned,order is issued in violation of the principles of natural justice. The impugned order and the Report of the Committee basing on which the termination has been ordered will show that the Centre is retrenching excess hands in accordance with the seniority in each category and they will get re-appointment as and when vacancies arise. Apparently, there is nothing wrong with the said stand. Every industry has a right to retrench excess workmen having regard to its requirement. But the termination or retrenchment has to be done in accordance with law after issuing notice or notice pay. But in the case at hand, what was done was, on 31.5.2002, suddenly the petitioners were thrown out of employment without any notice or notice pay. Confronted with this indefensible position, the learned counsel for the Reprographic Centre submitted that the appointments having been made in excess of the notified vacancies are void and, therefore, for the termination of such employees, notice is not required.</p><p style="text-align: justify;">11. It is common case of both sides that the Reprographic Centre is an 'industry' as defined under Section 2(j) of the Industrial Disputes Act. The respondents also did not dispute that if the termination of the petitioners is retrenchment, then the same is made in violation of Section 25R But the learned counsel for the Reprographic Centre would submit that the appointments having been made in excess of the notified strength, no notice is required for their termination. The pleading in this regard is contained in paragraph 9 at page 10 of the counter affidavit of the second respondent which reads as follows:</p><p style="text-align: justify;">'Appointments are also made much in excess of the notified vacancies. Therefore, as the law settled by the Hon'bie Supreme Court, application of the principles of natural justice is not attracted in this case.' </p><p style="text-align: justify;">12. But the learned counsel for the second respondent, the Reprographic Centre, went to the extent of stating that such appointments are void and, therefore, their termination is not retrenchment. An argument unsupported by the pleadings need not be examined by this Court. But still, I am examining that contention also on merits.</p><p style="text-align: justify;">13. The definition of 'retrenchment' is Section 2(oo) of the Industrial Disputes Act reads as follows:</p><p style="text-align: justify;">''retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-</p><p style="text-align: justify;">(a) voluntary retirement of the workman; or</p><p style="text-align: justify;">(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or</p><p style="text-align: justify;">(bb) termination of the service of a workman as a result of the non renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or</p><p style="text-align: justify;">(c) termination of the service of a workman on the ground of continued ill-health;'</p><p style="text-align: justify;">14. Termination of service for any reason whatsoever, except those covered by the enumerated exempted categories, is retrenchment. Normally, in common parlance, retrenchment is understood as removing the excess or chopping of the dead wood. But the Legislature has given the word an artificial meaning under the Industrial Disputes Act. Interpreting the said provision, the Supreme Court has gone to the extent of saying that if a probationer is terminated from service for the reason of his unsuitability, the same will amount to retrenchment (See the decision of the Supreme Court in Management of Karnataka State Transport Corporation v. Boraiah and Anr. (AIR 1983 SC 1320). A Constitution Bench of the Supreme Court in the decision in Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court (1990 (3) SCC 682) after analysing the entire decisions on the interpretation of Section 2(oo) defining 'retrenchment' has held as follows:</p><p style="text-align: justify;">'When we analyse the mental process in drafting the definition of 'retrenchment' in Section 2(oo) of the Act we find that firstly it is to mean the termination by the employer of the service of a workman for any reason whatsoever. Having said so the Parliament proceeded to limit it by including certain types of termination, namely, termination as a punishment inflicted by way of disciplinary action. The other types of termination excluded were (a) voluntary retrenchment; or (b) retrenchment of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation on that behalf; or (c) termination of service of a workman on the ground of continued ill health. Had the Parliament envisaged only the question of termination of surplus labour alone in mind, there would arise no question of excluding (a), (b) and (c) above. The same mental process was evident when Section 2(oo) was amended inserting another exclusion Clause (bb) by the Amending Act 49 of 1984, with effect from August 18, 1984, 'termination of the service of workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry of such contract being terminated under a stipulation in that behalf contained therein'.</p><p style="text-align: justify;">15. The ratio of the decision at paragraph 82 reads as follows:</p><p style="text-align: justify;">'Applying the above reasonings, principles and precedents, to the definition in Section 2(oo) of the Act, we hold that 'retrenchment' means me termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section'.</p><p style="text-align: justify;">From paragraph 1 of the said decision, it can be seen that Civil Appeal No. 3248/81 was one arising out of the termination of the workmen of the Corporation on the ground that the Chairman had no ppwer to appoint them. The Labour Court ordered their reinstatement treating their terrnination as retrenchment. The said Civil Appeal against the'award of the Labour Court was dismissed as evidentfrom paragraph 83 of the said decision.</p><p style="text-align: justify;">16. So, the termination of the service of the petitioners will be retrenchment, if it is not covered by any one of the five exemptions given in Section 2(oo), namely:</p><p style="text-align: justify;">1. Termination as a punishment in disciplinary action.</p><p style="text-align: justify;">2. Voluntaryretirement.</p><p style="text-align: justify;">3. Retirement on reaching superannuation.</p><p style="text-align: justify;">4. Termination on the expiry of the term provided in the contract of appointment.</p><p style="text-align: justify;">5. Termination owing to continued ill-health.</p><p style="text-align: justify;">The impugned order Ext. P5 is not covered by any of the exemptions enumerated above. Ext. P5 will clearly show that the excess work force is being retrenched, according to seniority. In view of the above authoritative pronouncement of the Constitution Bench of the Apex Court (1990 (3) SCC 682), even assuming that the petitioners are being retrenched for being appointed in excess of the notified vacancies, still their termination will be retrenchment. But, I feel that the respondents should not be permitted to contend that the petitioners are being retrenched for some other reason not mentioned in the impugned order. This point is covered by two Constitution Bench decisions of the Apex Court in Commissioner of Police v. Gordhandas Bhanji (AIR 1952 SC 16) and Mohinder Singh Gill v. Chief Election Commissioner (1978 (1) SCC 405). In the latter decision, the Supreme Court said:</p><p style="text-align: justify;">'When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shapeof affidavit orotherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, can be validated by additional grounds later brought out.' </p><p style="text-align: justify;">17. In the case at hand, the impugned order in unambiguous terms states that it is issued for terminating the excess staff (see the underlined portions in the impugned order quoted hereinabove). Therefore, going by the interpretation given to the retrenchment by the Supreme Court, the termination of the employees is retrenchment. Even assuming it is for some other reason as contended by the second respondent, then also it is retrenchment.</p><p style="text-align: justify;">18. Apart from the statements in the impugned order, paragraph 6.3 of Ext. R2(a) also says that the termination is to get rid of the surplus staff and the retrenched staff will be taken back subject to requirement on the basis of their present seniority. The relevant portion in paragraph 6.3 at page 39 of Ext. R2(a) (running page 54 of the counter affidavit), is extracted below:</p><p style="text-align: justify;">'Now KSAVRC has no otheroption. but to terminate the services of the surplus staff paving their due salaries and other claims as per rules in force. This is inevitable, as the employees are not at fault and they cannot be penalised for no fault of theirs. As suggested in para 3-11 Government may consider making separate arrangements to look into this aspect.</p><p style="text-align: justify;">As and when the organisation go for development, after recovering from the present crisis,by following the restructuring and adopting modified code of operations, the retrenched staffshall be taken back on the basis of their present seniority. The KSAVRC shall maintain properrecords/registers to monitor this'.</p><p style="text-align: justify;">The above portion of the Report will show that the termination is retrenchment and the staff so terminated is treated as retrenched staff to be absorbed in future vacancies. The Reprographic Centre as well as the Government accepted this Report. Therefore, the contention of the second respondent that the termination of the services of the petitioners is not retrenchment, is plainly perverse and misconceived.</p><p style="text-align: justify;">19. The learned counsel appearing for the second respondent in support of his contention that as the termination is made on the ground that the appointments made were in excess of the notified vacancies, no notice is required, relied on the decisions of the Supreme Court dealt with herein below. The decision in State of Bihar and Ors. v. The Secretariat Assistant Successful Examinees Union (1994 (1) SCC 126) relied on by the second respondent deals with the appointment to the post of Assistant in the Government Secretariat. It is not a case arising under the Industrial Disputes Act and, therefore, will not apply to the facts of the case. In the decision reported in Premsingh and Ors. v. Haryana State Electricity, Board, 1996 (4) SCC 319, the Supreme Court held as follows:</p><p style="text-align: justify;">'From the above discussion of the case-law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the Court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case'.</p><p style="text-align: justify;">Even assuming there is some irregularity in making appointments to more vacancies than notified, even then, their termination will amount to retrenchment. There is nothing in this decision against the said proposition. It is not considered in the said decision whether the termination of such employees will amount to retrenchment. The decision in Ashwani Kumar v. State of Bihar (1997 (2) SCC 1) deals with the appointment of candidates in an unauthorised manner made against non-existent vacancies in Government service. It was held that such appointments were void. The said decision has no application to the facts of the present case. In the case at hand, the appointment was made by the Governing Body to posts created by them. There were vacancies in posts created by the competent authority while the petitioners were appointed. This is evident from paragraph 3.10 at page 8 (running page 23) of Ext. R2(a) Report which reads as follows:</p><p style="text-align: justify;">'As per Government approved Memorandum of Association, the Governing Body is empowered to create posts and explicitly no Government permission isenvisaged. The Executive Committee and Governing Body which had met multiple times during this period and given approval to these large scale appointments indicate that there was no effective mechanism ineffecting judicial control both at administrative and financial aspects.' </p><p style="text-align: justify;">20. Here, at best what can be alleged is only a case of mismanagement. But, in Ashwani Kumar's case, the appointments were made to non-existing vacancies, unbacked by budgetary provision or the incumbents were appointed to 'imaginary or shadow vacancies'. So, this decision can in no way be pressed into service to support the termination of the petitioners. The learned counsel also relied on the decision of this Court reported in Koodaranhi Service Co-operative Bank v. Lissy (1993 (2) KLT 706). It was a case where an appointment was made against the statutory Rules. The service of the employee was terminated upon instructions issued by the officers of the Department of Co-operation. The Society had no option, but to terminate her from service. So, this Court said, since the termination was not on the basis of any voluntary act of the employer, the termination cannot be said to be retrenchment. In the case at hand, there is no violation of any statutory provision in the appointment of the petitioners and therefore, the said decision will not be applicable to the facts of this case. The learned counsel for the 2nd respondent also relied on the observations of the learned Author O.P. Malhotra in his 'The Law of Industrial Disputes' (fifth Edition) Vol. I (at page 336). It is observed by the learned Author that any appointment contrary to law will be void and therefore, the termination of illegal appointment will not be retrenchment and he states that the view taken by the Kerala High Court in Eranallor Service Co-operative Bank Ltd. v. Labour Court (1986 KLT 801 and 1986 (2) LLJ 492) is the correct view. The conclusion of the Author reads as follows:</p><p style="text-align: justify;">'Thus, though the definition of 'retrenchment' comprehends termination of service, it is not that every termination of service is retrenchment. In other words, every case of discharge simplicitor may not be a case of retrenchment, though there is preponderance of judicial opinion, that every termination of service not falling in any of the exception of Section 2(oo) would amount to retrenchment'.</p><p style="text-align: justify;">The said opinion of the learned Author cannot stand with the authoritative pronouncement of the Supreme Court in the Punjab Land Development & Reclamation Corporation's case (1990 (3) SCC 682). The learned Author while making the above quoted observation, has not referred to this decision of the Constitution Bench of the Apex Court. Apart from that, no one has a case that the appointment of the petitioners is contrary to any statutory provision. Therefore, the contention of the second respondent cannot be accepted. As stated earlier, the second respondent does not have any case either in the impugned order or in Ext. R2(a) report that the appointments were contrary to law and therefore void; and for that reason, the terminations are ordered. But, to be fair to the said respondent, this Court has dealt with its above said contention elaborately.</p><p style="text-align: justify;">21. In view of the above legal position, it can be safely concluded that the termination of the petitioners is retrenchment. Therefore, the termination having been made in violation of the mandatory provisions in Section 25F of the Industrial Disputes Act, is void ab initio. Nobody has disputed the proposition that if the termination is retrenchment, then it is void in view of the violation of the provisions of Section 25F of the Industrial Disputes Act. The petitioners were not given notice or notice pay in lieu of notice or retrenchment compensation. So, the termination is void ab initio. The Apex Court has consistently taken the view that the provisions of Section 25F is mandatory and any violation thereof will render the retrenchment void ab initio (see the decisions of the Apex Court in 'Karnataka State Road Transport Corporation v. M. Boraiah (AIR 1983 SC 1320), Gammon India Ltd. v. Niranjan Das (1984 (1) SCC 509), Workmen v. Food Corporation of India (AIR 1985 SC 670X Narotam Chopra v. Presiding Officer (1989 (2) Supp. (2) SCC 97), Rolston John v. Central Government Industrial Tribunal (AIR 1994 SC 131), Lal Mohamed v. Indian Railway Construction Co. Ltd. (AIR 1999 SC 355), Mohanlal v. Bharath Electronics Ltd. (1981) SC 1253), Man Mohan Rastogi v. Labour Court (AIR 1984 SC 502).</p><p style="text-align: justify;">22. Apart from the violation of Section 25F, the petitioners have been sent out in violation of R. 2.54 of their Service Rules. Notice or notice pay is mandatory under the said Rule. When the employer claims that its actions shall be governed by certain norms in the matter of termination of the services of the employees, it should be compelled to follow those norms on pain of invalidation of the actions taken in violation of them (See the decision of the Apex Court in B.S. Minnas v. Indian Statistical Institute (AIR 1984 SC 363). In the said decision, the Supreme Court held as follows:</p><p style="text-align: justify;">'22. The next question that arises for consideration is whether the appointment ofrespondent No. 4 as Director of respondent No. 1 is illegal because of non-compliance with byelaw 2. Bye-law 2 does require that before appointment, the vacancy in the post of Director shouldbe suitably publicised. In the instant case, it is admitted on both sides that no publicitywhatsoever was given in respect of the vacancy. The contention of Shri Garg, however, is thatthe bye-law having no force of statute, non-compliance with its requirement cannot in any wayaffect the appointment of respondent No. 4 as Director of respondent No. 1. Shri Tarkuhde,however, contended that assuming that the bye-law is not statutory, even so respondent No. 1 wasbound to comply with it. In support of his contention he strongly relied upon Ramana DayaramShetty v. International Airport Authority of India (1979) 3 SCR 1014; (AIR 1979 SC 1628). TheCourt in that case held (At p. 1635 of AIR):</p><p style="text-align: justify;">It is a well-settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciatedby Mr. Justice Frankfurter in Vitarelli v. Seaton, ((1959) 359 US 535: 3 L.Ed. 2d 1012) where the learned Judge said:</p><p style="text-align: justify;">An executive agency must be rigorously held to the standards by which it professes itsaction to be judged. Accordingly, if dismissalfromemploymentis based on a defined procedure,even though generous beyond the requirements that bind such agency, that procedure mustbe scrupulously observed. This judicially evolved rule of administrative law is now firmlyestablished and, if I may add, rightly so. He that takes the procedural sword shall perish withthat sword'. The aforesaid principle laid down by Mr. Justice Frankfurter in Vitarelli v. Seaton,(1959) 3 Law Ed. 2d,lQl2 has be,en accepted as applicable in India by this Court in A.S. Ahluwalia v. Punjab State, (1975) 3 SCR 82: (AIR 1975 SC 984) and in subsequent decision given in Sukhdev v. Bhagatram, (1975) 3 SCR 619: (AIR 1975 SC 1331), Mathew J. quoted the above-referred observation of Mr. Justice Frankfurter with approval.</p><p style="text-align: justify;">23. In view of the pronouncement of this Court on the point it must be held to be obligatory on the part of respondent No. 1 to follow the bye-laws, if the bye-laws have been framed for the conduct of its affairs to'avoid arbitrariness. Respondent No. 1 cannot, therefore, escape the liability for not following the procedure prescribed by bye-law 2.'</p><p style="text-align: justify;">Therefore, for the violation of the provisions contained in R. 2.54 of the Service Rules, the termination of the services of the petitioners is illegal.</p><p style="text-align: justify;">23. Apart from that, whatever be the reasons for the termination of the services of the petitioners who were appointed regularly on probation and who have completed their period of probation, going by the universally accepted principles of natural justice, the sudden termination of their services without notice or hearing, is void ab initio. The termination of their services affects their livelihood. The right to life guaranteed under Article 21 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> will include the right to livelihood also. (See the decisions of the Apex Court in Olga Tellis v. Municipal Corporation of Bombay (AIR 1986 SC 180) and Delhi Transport Corporation v. DTC Mazdoor Congress (AIR 1991 SC 101). In the latter decision, the Supreme Court (at paragraph 223) said:</p><p style="text-align: justify;">'The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them'.</p><p style="text-align: justify;">24. In view of the above legal position, since the right to livelihood of the petitioners was deprived without notice, the said action is void ab initio. Now it is well settled that the violation of the principles of natural justice will amount to the violation of the rights of the employee under Article 14 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. See the decision of the Apex Court in Union of India v. Tulsiram Patel (1985 (3) SCC 398). In the said decision, it was held as follows:</p><p style="text-align: justify;">'95. The principles of natural justice have thus come to be recognised as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject matter of that article. Shortly put, the syllogism runs thus: violation of a ruleof natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of Article 14: therefore, a violation of a principle of natural justice by a State action is a violation of Article 14'.</p><p style="text-align: justify;">So, for this reason also, the impugned order is void.</p><p style="text-align: justify;">25. A faint attempt was made by the second respondent to suggest that it has acted according to the direction of the Government. Every Government worth its name is bound to issue directions to industries under its control to run them properly. The direction to terminate excess staff is one such direction. But the Government cannot direct and have not directed the Reprographic Centre to terminate the services of the petitioners illegally. The Centre was bound to act in accordance with law while implementing the directions of the Government. Even Ext. R2(a) Report based on which the decision was taken by the Reprographic Centre says that the workers should be paid the dues at paragraph 6.3 quoted above. It is said:</p><p style="text-align: justify;">'Now KSAVRC has no other option, but to terminate the services of the surplus staff paying their due salaries and other claims as per rules in Force.' </p><p style="text-align: justify;">Therefore, the Reprographic Centre should have acted in accordance with law in terminating the surplus staff.</p><p style="text-align: justify;">26. The petitioners have a case that the finding in Ext. R2(a) and in Ext. P5 that they are surplus is unsustainable. This is a disputed question of fact and the contentions of both sides on this point are kept open.</p><p style="text-align: justify;">27. For all the above reasons, Ext. P5 is quashed as being null and void. The petitioners are deemed to be in service and they will be entitled to all consequential benefits. But, this will not stand in the way of the Reprographic Centre terminating the excess staff in accordance with law. Needless to say, in case the services of the petitioners are not needed, their reinstatement need only be notional, not physical, for completing the formalities for retrenching them in accordance with law. But, the employees will be entitled to all monetary benefits for the period they are kept out of service till they are validly retrenched. It is also clarified that if there are any non-workmen among the employees, they can be retrenched by following the procedure under R. 2.54 of the Service Rules. In other words, in their case, the procedure under Section 25F of the Industrial Disputes Act need not be followed.</p><p style="text-align: justify;">The Original Petitions are allowed as above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2002(95)FLR1042]',
		'ratiodecidendi' => '',
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include - APP/View/Case/meta.ctp, line 36
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Warning (2): Invalid argument supplied for foreach() [APP/View/Case/meta.ctp, line 39]
Code Context
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			'id' => '727227',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2 and 25F; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 21',
			'appealno' => 'O.P. No. 15419 of 2002',
			'appellant' => 'Mallika Rajam',
			'authreffered' => '',
			'casename' => 'Mallika Rajam Vs. State of Kerala',
			'casenote' => 'Labour and Industrial - retrenchment - Sections 2 (oo) and 25 F of Industrial Disputes Act, 1947, Rule 2.54 of Service Rules and Article 21 of Constitution of India - petitioners challenged impugned Orders terminating them on ground that same violated Rule 2.54 and Section 25 F - impugned Order not falling in any of exemptions enumerated in Section 2 (oo) and thus petitioner's termination was retrenchment - termination made in violation of 25 F void ab initio - termination made in violation of Rule 2.54 illegal - right to life guaranteed under Article 21 includes right to livelihood to which petitioners deprived without requisite notice - held, impugned Order quashed as being null and void.


 - LABOUR  & SERVICES
Appointment: [V.K. Bali, CH, P.R. Raman & S. Siri Jagan, JJ] Post of Pharmacist in Homeopathy Subordinate Service -  Special Rules for Kerala Homeopathy Subordinate Service Rules, 1999 introducing new qualifications  Vacancy arising subsequent to coming into force of the said special rules  Held, Vacancies have to be filled up only in accordance with Special Rules, 1999. Unfilled vacancy that had arisen prior to amendment cannot be filled up by candidate not possessing amended qualifications prescribed by Special Rules. State Government has the power to frame or amend the Special Rules with or without retrospective effect. Mohanan K.R. & anr vs Director of Homeopathy, Kerala Homeopathy Services, Trivandrum & ors. -  The management failed to control the labour forces. The centre failed to meet its operational expenses including salary to the employees. The study report found that the over staffing has made the normal functioning of the unit impossible and has recommended for cutting the employees strength in various categories. The 20th Governing Body meeting held on 4.3.2002, examined the views of the committee and decided to implement the measures recommended by the three member committee wherever possible. The ceatre has no option other than to terminate these excess employees to safeguard the best interest of the institution and its remaining employees. P5 will clearly show that the excess work force is being retrenched, according to seniority. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, can be validated by additional grounds later brought out. The Reprographic Centre as well as the Government accepted this Report. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. ' 20. Here, at best what can be alleged is only a case of mismanagement. 1635 of AIR): It is a well-settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. Now it is well settled that the violation of the principles of natural justice will amount to the violation of the rights of the employee under Article 14 of the Constitution of India.',
			'caseanalysis' => null,
			'casesref' => 'Union of India v. Tulsiram Patel;',
			'citingcases' => '',
			'counselplain' => ' S. James Vincent, Adv.',
			'counseldef' => ' V.K. Beeran, Addl. Adv. and; B.S. Krishnan, Sr. Adv.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2002-07-01',
			'deposition' => 'Original petitions allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' K. Balakrishnan Nair, J.',
			'judgement' => '<p style="text-align: justify;">K. Balakrishnan Nair, J.</p><p style="text-align: justify;">1. The points which arise in all these cases being identical, they are heard together and disposed of by a common judgment.</p><p style="text-align: justify;">2. All the petitioners are employees of the Kerala State Audio Visual & Reprographic Centre, Thiruvananthapuram which is an autonomous Institution established by the Government as per its order dated 28.4.1992. It is a Society registered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act. Its Governing Body contains only Government Officials or their nominees. The Minister for Education of the State will be the Ex-officio Chairman and the Managing Director will be its Executive Director and Member Secretary. It is common case that the said Institution (hereinafter referred to as 'the Reprographic Centre') is amenable to the writ jurisdiction of this Court.</p><p style="text-align: justify;">3. All the petitioners were appointed in the Reprographic Centre and its various units during the years 2000 and 2001 on a regular basis as probationers. All of them have completed their period of probation. Some of the petitioners had earlier spells of temporary appointments also.</p><p style="text-align: justify;">4. The impugned order in all the Original Petitions is the order issued by the Reprographic Centre dated 31.5.2002 terminating the services of the petitioners and others who were found to be excess employees. The impugned order is extracted herein below for convenient reference;</p><p style="text-align: justify;">'Kerala State Audio-Visual and Reprographic Centre is an autonomous institution established by the Government of Kerala as per G.O. (MS) 73/92/H.Edn. dated 28.4.1992. The. functioning of the institution was satisfactory in the earlier stages. But later on, it ran into huge losses. During the years 2000 and 2001,938 persons were seen appointed against the notified vacanciesofonly 186. (Two notifications issued on 5.4.2000 and 13.4.2000No.KSAVRC/2221/2000 dated 5.4.2000 and KSAVRC/2247/00 dated 13.4.2000 respectively). During the months of September and October, 2001, there was labour unrest and the centre became virtually bankrupt. The management failed to control the labour forces. The centre failed to meet its operational expenses including salary to the employees.</p><p style="text-align: justify;">In these circumstances, as per G.O.(MS)/144/2001/H.Edn.dated 22.10.2001 the Govemment of Kerala, appointed a three membercommittee consisting of Sri. G. Jayasankar, Govt. Engineering College, Barton Hill, Thiruvananthapuram, Sri. Mathew V. John, Superintendent, Government Presses, Thiruvananthapuram and Sri. S.UpendranNair,Retd.Addl. Secretary to Govt. to study the functioning of Kerala State Audio Visual and Reprographic Centre and to suggest the measures to uplift the sinking institution. The committee conducted the study in depth and suggested certain measures to revive the unit and its report was submitted during the month of March, 2002. In the study report various measures were suggested for the sustenance and growth of the institution. The study report found that the over staffing has made the normal functioning of the unit impossible and has recommended for cutting the employees strength in various categories.</p><p style="text-align: justify;">The 20th Governing Body meeting held on 4.3.2002, examined the views of the committee and decided to implement the measures recommended by the three member committee wherever possible. As part of the revival measures, the Governing Body decided to terminate the excess staff in the institution wherever necessary, since the appointment of that persons were totally unnecessary and unaffordable.</p><p style="text-align: justify;">After examining the committee's report and considering the present stage of the institution, as per the reference (2) the Gpvernment directed to terminate the services of excess staff in various categories. The ceatre has no option other than to terminate these excess employees to safeguard the best interest of the institution and its remaining employees. In each category, the junior most persons are to be terminated.</p><p style="text-align: justify;">In these circumstances, the following employees are terminated from the service of KeralaState Audio Visual and Reprographic Centre with effect from 1.6.2002. The names of theterminated employees are placed below in category wise.'</p><p style="text-align: justify;">5. From the impugned order, it would appear that the Reprographic Centre has appointed 938 persons against notified vacancies of 186. Therefore, there are excess staff in many categories. So, on the basis of a study conducted by a committee appointed by the Government, it was resolved to terminate the excess employees. The Government have also directed the termination of employees who are in excess of the requirement of the Reprographic Centre. So, the petitioners and others were terminated. The impugned order was published in the Notice Board of the Reprographic Centre on 31.5.2002 and the doors of the Centre were closed before them on the very same day without any notice or warning, and the petitioners and similarly placed employees were rendered unemployed.</p><p style="text-align: justify;">6. The petitioners challenge the impugned order dated 31.5.2002 mainly on three grounds. The first ground of attack is that the petitioners are being terminated in violation of Rule 2.54 of the Kerala State Audio Visual Reprographic Centre Rules on Service Conditions of Employees and Allied Matters. The said Rules in the Service Rules applicable to the petitioners reads as follows:</p><p style="text-align: justify;">'2.54. Termination of Service otherwise than as a Disciplinary Measure:</p><p style="text-align: justify;">The services of an employee who is on probation may be terminated by his being given fourteen days notice or in default of such, notice payment of fourteen days pay.</p><p style="text-align: justify;">Employees who are regularised may be retrenched from service on abolition of posts or on discontinuance of shift work but such retrenchment from service will be in the order of juniority of employee holding the post in aparticular category. Such discharge of a regularised employee shall be after giving notice of one month or wages in lieu thereof. If a shift is restarted, the retrenched employee will have a claim for notice and reappointment.</p><p style="text-align: justify;">Provided that, if there is a lower post on which the employee holds a lien he will be reverted to such lower post instead of being retrenched in the order of juniority and no compensation will be payable in respect of the post from which an employee is reverted for want of vacancy.'</p><p style="text-align: justify;">So, notice or payment of notice pay is obligatory for retrenchment.</p><p style="text-align: justify;">7. The second ground of attack is that their termination from service is retrenchment in terms of Section 2(oo) of the Industrial Disputes Act and the retrenchment has been made in violation of Section 25F of the said Act. The third ground of attack is that the impugned order has been passed without notice or hearing to the petitioners. The petitioners have raised other grounds also in the Original Petitions. In some cases, they dispute the finding that they are in excess. In few cases, they contend that seniority in certain categories has not been followed for ordering retrenchment. It is also pointed out in certain cases that in some categories, the appointments were strictly in accordance with the numbers notified and therefore, the stand of the management that employees appointed in excess of the notified vacancies alone are retrenched, is not correct.</p><p style="text-align: justify;">8. The Reprographic Centre has filed a counter affidavit in O.P. No. 14472/2002 and copies of the same have been served on the counsel appearing in most of the cases. O.P. No. 14472/2002 is treated as the main Original Petition for the purpose of reference to the Exhibits. Exts. P1 to P4 are appointment orders of the petitioners dated 5.3.2001. Ext. P5 is the impugned order dated 31.5.2002. In the counter affidavit it is stated that 'the day-to-day expenses towards the salaries and wages of the employees for running the centre are to be met from the income generated from the commercial activities undertaken by the Centre itself.' It is also pointed out that 'no portion of the grant received from the Government can be expended towards payment of salaries, wages etc.' The reasons for termination of the services of the employees given in the impugned order are reiterated in the counter affidavit. It is submitted that the strength of staff is in excess of requirement and every month the Reprographic Centre requires Rs. 50 Lakhs for payment of salaries and wages. Of late, it was not able to meet its commitment to pay wages which has resulted in unrest among the employees. Therefore, the Government by G.O. (MS) No. 144/2001/H.Edn. dated 22.10.2001 appointed a committee to study on the functioning of the Centre and to suggest ways and means for reviving the Centre. The committee submitted Ext. R2(a) Report in March, 2002. It is submitted that the Governing Body Meeting held on 4.3.2002 discussed Ext. R2(a) Report in detail. It was found that during the years 2000 and 2001,938 employees were appointed. Therefore, the same has resulted in creation of surplus in the work force. In the meantime, the Government also considered the Report and directed the Centre by G.O. (MS) No. 55/2002/H.Edn. dated 30.5.2002 to terminate the surplus staff. 499 employees were found to be in excess. Therefore, the Reprographic Centre ordered the termination of the excess staff and it is submitted that 433 probationers are terminated from service. Of the said 433 employees, 17 had already left the service of the Reprographic Centre and therefore only 416 are affected by the retrenchment.</p><p style="text-align: justify;">9. In the counter affidavit, it is also averred that appointments were made in excess of the notified vacancies and therefore, the application of the principles of natural justice is not attracted in this case. In the counter affidavit, it is asserted that 'no new recruitment will be made in the Centre in any of the posts in which termination is effected or in any of the existing posts'. It is also submitted that the Deputy Accountant General (Audit) has pointed out that the recruitments made in excess were irregular and unjustifiable and it has resulted in creation of avoidable expenditure to, the Centre,</p><p style="text-align: justify;">10. I heard both sides. The petitioners mainly relied on their three contentions mentioned earlier that their termination is made in violation of R. 2.54 of their Service Rules, that the same is ordered in violation of the Section 25F of the Industrial Disputes Act and that the impugned,order is issued in violation of the principles of natural justice. The impugned order and the Report of the Committee basing on which the termination has been ordered will show that the Centre is retrenching excess hands in accordance with the seniority in each category and they will get re-appointment as and when vacancies arise. Apparently, there is nothing wrong with the said stand. Every industry has a right to retrench excess workmen having regard to its requirement. But the termination or retrenchment has to be done in accordance with law after issuing notice or notice pay. But in the case at hand, what was done was, on 31.5.2002, suddenly the petitioners were thrown out of employment without any notice or notice pay. Confronted with this indefensible position, the learned counsel for the Reprographic Centre submitted that the appointments having been made in excess of the notified vacancies are void and, therefore, for the termination of such employees, notice is not required.</p><p style="text-align: justify;">11. It is common case of both sides that the Reprographic Centre is an 'industry' as defined under Section 2(j) of the Industrial Disputes Act. The respondents also did not dispute that if the termination of the petitioners is retrenchment, then the same is made in violation of Section 25R But the learned counsel for the Reprographic Centre would submit that the appointments having been made in excess of the notified strength, no notice is required for their termination. The pleading in this regard is contained in paragraph 9 at page 10 of the counter affidavit of the second respondent which reads as follows:</p><p style="text-align: justify;">'Appointments are also made much in excess of the notified vacancies. Therefore, as the law settled by the Hon'bie Supreme Court, application of the principles of natural justice is not attracted in this case.' </p><p style="text-align: justify;">12. But the learned counsel for the second respondent, the Reprographic Centre, went to the extent of stating that such appointments are void and, therefore, their termination is not retrenchment. An argument unsupported by the pleadings need not be examined by this Court. But still, I am examining that contention also on merits.</p><p style="text-align: justify;">13. The definition of 'retrenchment' is Section 2(oo) of the Industrial Disputes Act reads as follows:</p><p style="text-align: justify;">''retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-</p><p style="text-align: justify;">(a) voluntary retirement of the workman; or</p><p style="text-align: justify;">(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or</p><p style="text-align: justify;">(bb) termination of the service of a workman as a result of the non renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or</p><p style="text-align: justify;">(c) termination of the service of a workman on the ground of continued ill-health;'</p><p style="text-align: justify;">14. Termination of service for any reason whatsoever, except those covered by the enumerated exempted categories, is retrenchment. Normally, in common parlance, retrenchment is understood as removing the excess or chopping of the dead wood. But the Legislature has given the word an artificial meaning under the Industrial Disputes Act. Interpreting the said provision, the Supreme Court has gone to the extent of saying that if a probationer is terminated from service for the reason of his unsuitability, the same will amount to retrenchment (See the decision of the Supreme Court in Management of Karnataka State Transport Corporation v. Boraiah and Anr. (AIR 1983 SC 1320). A Constitution Bench of the Supreme Court in the decision in Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court (1990 (3) SCC 682) after analysing the entire decisions on the interpretation of Section 2(oo) defining 'retrenchment' has held as follows:</p><p style="text-align: justify;">'When we analyse the mental process in drafting the definition of 'retrenchment' in Section 2(oo) of the Act we find that firstly it is to mean the termination by the employer of the service of a workman for any reason whatsoever. Having said so the Parliament proceeded to limit it by including certain types of termination, namely, termination as a punishment inflicted by way of disciplinary action. The other types of termination excluded were (a) voluntary retrenchment; or (b) retrenchment of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation on that behalf; or (c) termination of service of a workman on the ground of continued ill health. Had the Parliament envisaged only the question of termination of surplus labour alone in mind, there would arise no question of excluding (a), (b) and (c) above. The same mental process was evident when Section 2(oo) was amended inserting another exclusion Clause (bb) by the Amending Act 49 of 1984, with effect from August 18, 1984, 'termination of the service of workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry of such contract being terminated under a stipulation in that behalf contained therein'.</p><p style="text-align: justify;">15. The ratio of the decision at paragraph 82 reads as follows:</p><p style="text-align: justify;">'Applying the above reasonings, principles and precedents, to the definition in Section 2(oo) of the Act, we hold that 'retrenchment' means me termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section'.</p><p style="text-align: justify;">From paragraph 1 of the said decision, it can be seen that Civil Appeal No. 3248/81 was one arising out of the termination of the workmen of the Corporation on the ground that the Chairman had no ppwer to appoint them. The Labour Court ordered their reinstatement treating their terrnination as retrenchment. The said Civil Appeal against the'award of the Labour Court was dismissed as evidentfrom paragraph 83 of the said decision.</p><p style="text-align: justify;">16. So, the termination of the service of the petitioners will be retrenchment, if it is not covered by any one of the five exemptions given in Section 2(oo), namely:</p><p style="text-align: justify;">1. Termination as a punishment in disciplinary action.</p><p style="text-align: justify;">2. Voluntaryretirement.</p><p style="text-align: justify;">3. Retirement on reaching superannuation.</p><p style="text-align: justify;">4. Termination on the expiry of the term provided in the contract of appointment.</p><p style="text-align: justify;">5. Termination owing to continued ill-health.</p><p style="text-align: justify;">The impugned order Ext. P5 is not covered by any of the exemptions enumerated above. Ext. P5 will clearly show that the excess work force is being retrenched, according to seniority. In view of the above authoritative pronouncement of the Constitution Bench of the Apex Court (1990 (3) SCC 682), even assuming that the petitioners are being retrenched for being appointed in excess of the notified vacancies, still their termination will be retrenchment. But, I feel that the respondents should not be permitted to contend that the petitioners are being retrenched for some other reason not mentioned in the impugned order. This point is covered by two Constitution Bench decisions of the Apex Court in Commissioner of Police v. Gordhandas Bhanji (AIR 1952 SC 16) and Mohinder Singh Gill v. Chief Election Commissioner (1978 (1) SCC 405). In the latter decision, the Supreme Court said:</p><p style="text-align: justify;">'When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shapeof affidavit orotherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, can be validated by additional grounds later brought out.' </p><p style="text-align: justify;">17. In the case at hand, the impugned order in unambiguous terms states that it is issued for terminating the excess staff (see the underlined portions in the impugned order quoted hereinabove). Therefore, going by the interpretation given to the retrenchment by the Supreme Court, the termination of the employees is retrenchment. Even assuming it is for some other reason as contended by the second respondent, then also it is retrenchment.</p><p style="text-align: justify;">18. Apart from the statements in the impugned order, paragraph 6.3 of Ext. R2(a) also says that the termination is to get rid of the surplus staff and the retrenched staff will be taken back subject to requirement on the basis of their present seniority. The relevant portion in paragraph 6.3 at page 39 of Ext. R2(a) (running page 54 of the counter affidavit), is extracted below:</p><p style="text-align: justify;">'Now KSAVRC has no otheroption. but to terminate the services of the surplus staff paving their due salaries and other claims as per rules in force. This is inevitable, as the employees are not at fault and they cannot be penalised for no fault of theirs. As suggested in para 3-11 Government may consider making separate arrangements to look into this aspect.</p><p style="text-align: justify;">As and when the organisation go for development, after recovering from the present crisis,by following the restructuring and adopting modified code of operations, the retrenched staffshall be taken back on the basis of their present seniority. The KSAVRC shall maintain properrecords/registers to monitor this'.</p><p style="text-align: justify;">The above portion of the Report will show that the termination is retrenchment and the staff so terminated is treated as retrenched staff to be absorbed in future vacancies. The Reprographic Centre as well as the Government accepted this Report. Therefore, the contention of the second respondent that the termination of the services of the petitioners is not retrenchment, is plainly perverse and misconceived.</p><p style="text-align: justify;">19. The learned counsel appearing for the second respondent in support of his contention that as the termination is made on the ground that the appointments made were in excess of the notified vacancies, no notice is required, relied on the decisions of the Supreme Court dealt with herein below. The decision in State of Bihar and Ors. v. The Secretariat Assistant Successful Examinees Union (1994 (1) SCC 126) relied on by the second respondent deals with the appointment to the post of Assistant in the Government Secretariat. It is not a case arising under the Industrial Disputes Act and, therefore, will not apply to the facts of the case. In the decision reported in Premsingh and Ors. v. Haryana State Electricity, Board, 1996 (4) SCC 319, the Supreme Court held as follows:</p><p style="text-align: justify;">'From the above discussion of the case-law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the Court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case'.</p><p style="text-align: justify;">Even assuming there is some irregularity in making appointments to more vacancies than notified, even then, their termination will amount to retrenchment. There is nothing in this decision against the said proposition. It is not considered in the said decision whether the termination of such employees will amount to retrenchment. The decision in Ashwani Kumar v. State of Bihar (1997 (2) SCC 1) deals with the appointment of candidates in an unauthorised manner made against non-existent vacancies in Government service. It was held that such appointments were void. The said decision has no application to the facts of the present case. In the case at hand, the appointment was made by the Governing Body to posts created by them. There were vacancies in posts created by the competent authority while the petitioners were appointed. This is evident from paragraph 3.10 at page 8 (running page 23) of Ext. R2(a) Report which reads as follows:</p><p style="text-align: justify;">'As per Government approved Memorandum of Association, the Governing Body is empowered to create posts and explicitly no Government permission isenvisaged. The Executive Committee and Governing Body which had met multiple times during this period and given approval to these large scale appointments indicate that there was no effective mechanism ineffecting judicial control both at administrative and financial aspects.' </p><p style="text-align: justify;">20. Here, at best what can be alleged is only a case of mismanagement. But, in Ashwani Kumar's case, the appointments were made to non-existing vacancies, unbacked by budgetary provision or the incumbents were appointed to 'imaginary or shadow vacancies'. So, this decision can in no way be pressed into service to support the termination of the petitioners. The learned counsel also relied on the decision of this Court reported in Koodaranhi Service Co-operative Bank v. Lissy (1993 (2) KLT 706). It was a case where an appointment was made against the statutory Rules. The service of the employee was terminated upon instructions issued by the officers of the Department of Co-operation. The Society had no option, but to terminate her from service. So, this Court said, since the termination was not on the basis of any voluntary act of the employer, the termination cannot be said to be retrenchment. In the case at hand, there is no violation of any statutory provision in the appointment of the petitioners and therefore, the said decision will not be applicable to the facts of this case. The learned counsel for the 2nd respondent also relied on the observations of the learned Author O.P. Malhotra in his 'The Law of Industrial Disputes' (fifth Edition) Vol. I (at page 336). It is observed by the learned Author that any appointment contrary to law will be void and therefore, the termination of illegal appointment will not be retrenchment and he states that the view taken by the Kerala High Court in Eranallor Service Co-operative Bank Ltd. v. Labour Court (1986 KLT 801 and 1986 (2) LLJ 492) is the correct view. The conclusion of the Author reads as follows:</p><p style="text-align: justify;">'Thus, though the definition of 'retrenchment' comprehends termination of service, it is not that every termination of service is retrenchment. In other words, every case of discharge simplicitor may not be a case of retrenchment, though there is preponderance of judicial opinion, that every termination of service not falling in any of the exception of Section 2(oo) would amount to retrenchment'.</p><p style="text-align: justify;">The said opinion of the learned Author cannot stand with the authoritative pronouncement of the Supreme Court in the Punjab Land Development & Reclamation Corporation's case (1990 (3) SCC 682). The learned Author while making the above quoted observation, has not referred to this decision of the Constitution Bench of the Apex Court. Apart from that, no one has a case that the appointment of the petitioners is contrary to any statutory provision. Therefore, the contention of the second respondent cannot be accepted. As stated earlier, the second respondent does not have any case either in the impugned order or in Ext. R2(a) report that the appointments were contrary to law and therefore void; and for that reason, the terminations are ordered. But, to be fair to the said respondent, this Court has dealt with its above said contention elaborately.</p><p style="text-align: justify;">21. In view of the above legal position, it can be safely concluded that the termination of the petitioners is retrenchment. Therefore, the termination having been made in violation of the mandatory provisions in Section 25F of the Industrial Disputes Act, is void ab initio. Nobody has disputed the proposition that if the termination is retrenchment, then it is void in view of the violation of the provisions of Section 25F of the Industrial Disputes Act. The petitioners were not given notice or notice pay in lieu of notice or retrenchment compensation. So, the termination is void ab initio. The Apex Court has consistently taken the view that the provisions of Section 25F is mandatory and any violation thereof will render the retrenchment void ab initio (see the decisions of the Apex Court in 'Karnataka State Road Transport Corporation v. M. Boraiah (AIR 1983 SC 1320), Gammon India Ltd. v. Niranjan Das (1984 (1) SCC 509), Workmen v. Food Corporation of India (AIR 1985 SC 670X Narotam Chopra v. Presiding Officer (1989 (2) Supp. (2) SCC 97), Rolston John v. Central Government Industrial Tribunal (AIR 1994 SC 131), Lal Mohamed v. Indian Railway Construction Co. Ltd. (AIR 1999 SC 355), Mohanlal v. Bharath Electronics Ltd. (1981) SC 1253), Man Mohan Rastogi v. Labour Court (AIR 1984 SC 502).</p><p style="text-align: justify;">22. Apart from the violation of Section 25F, the petitioners have been sent out in violation of R. 2.54 of their Service Rules. Notice or notice pay is mandatory under the said Rule. When the employer claims that its actions shall be governed by certain norms in the matter of termination of the services of the employees, it should be compelled to follow those norms on pain of invalidation of the actions taken in violation of them (See the decision of the Apex Court in B.S. Minnas v. Indian Statistical Institute (AIR 1984 SC 363). In the said decision, the Supreme Court held as follows:</p><p style="text-align: justify;">'22. The next question that arises for consideration is whether the appointment ofrespondent No. 4 as Director of respondent No. 1 is illegal because of non-compliance with byelaw 2. Bye-law 2 does require that before appointment, the vacancy in the post of Director shouldbe suitably publicised. In the instant case, it is admitted on both sides that no publicitywhatsoever was given in respect of the vacancy. The contention of Shri Garg, however, is thatthe bye-law having no force of statute, non-compliance with its requirement cannot in any wayaffect the appointment of respondent No. 4 as Director of respondent No. 1. Shri Tarkuhde,however, contended that assuming that the bye-law is not statutory, even so respondent No. 1 wasbound to comply with it. In support of his contention he strongly relied upon Ramana DayaramShetty v. International Airport Authority of India (1979) 3 SCR 1014; (AIR 1979 SC 1628). TheCourt in that case held (At p. 1635 of AIR):</p><p style="text-align: justify;">It is a well-settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciatedby Mr. Justice Frankfurter in Vitarelli v. Seaton, ((1959) 359 US 535: 3 L.Ed. 2d 1012) where the learned Judge said:</p><p style="text-align: justify;">An executive agency must be rigorously held to the standards by which it professes itsaction to be judged. Accordingly, if dismissalfromemploymentis based on a defined procedure,even though generous beyond the requirements that bind such agency, that procedure mustbe scrupulously observed. This judicially evolved rule of administrative law is now firmlyestablished and, if I may add, rightly so. He that takes the procedural sword shall perish withthat sword'. The aforesaid principle laid down by Mr. Justice Frankfurter in Vitarelli v. Seaton,(1959) 3 Law Ed. 2d,lQl2 has be,en accepted as applicable in India by this Court in A.S. Ahluwalia v. Punjab State, (1975) 3 SCR 82: (AIR 1975 SC 984) and in subsequent decision given in Sukhdev v. Bhagatram, (1975) 3 SCR 619: (AIR 1975 SC 1331), Mathew J. quoted the above-referred observation of Mr. Justice Frankfurter with approval.</p><p style="text-align: justify;">23. In view of the pronouncement of this Court on the point it must be held to be obligatory on the part of respondent No. 1 to follow the bye-laws, if the bye-laws have been framed for the conduct of its affairs to'avoid arbitrariness. Respondent No. 1 cannot, therefore, escape the liability for not following the procedure prescribed by bye-law 2.'</p><p style="text-align: justify;">Therefore, for the violation of the provisions contained in R. 2.54 of the Service Rules, the termination of the services of the petitioners is illegal.</p><p style="text-align: justify;">23. Apart from that, whatever be the reasons for the termination of the services of the petitioners who were appointed regularly on probation and who have completed their period of probation, going by the universally accepted principles of natural justice, the sudden termination of their services without notice or hearing, is void ab initio. The termination of their services affects their livelihood. The right to life guaranteed under Article 21 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> will include the right to livelihood also. (See the decisions of the Apex Court in Olga Tellis v. Municipal Corporation of Bombay (AIR 1986 SC 180) and Delhi Transport Corporation v. DTC Mazdoor Congress (AIR 1991 SC 101). In the latter decision, the Supreme Court (at paragraph 223) said:</p><p style="text-align: justify;">'The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them'.</p><p style="text-align: justify;">24. In view of the above legal position, since the right to livelihood of the petitioners was deprived without notice, the said action is void ab initio. Now it is well settled that the violation of the principles of natural justice will amount to the violation of the rights of the employee under Article 14 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. See the decision of the Apex Court in Union of India v. Tulsiram Patel (1985 (3) SCC 398). In the said decision, it was held as follows:</p><p style="text-align: justify;">'95. The principles of natural justice have thus come to be recognised as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject matter of that article. Shortly put, the syllogism runs thus: violation of a ruleof natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of Article 14: therefore, a violation of a principle of natural justice by a State action is a violation of Article 14'.</p><p style="text-align: justify;">So, for this reason also, the impugned order is void.</p><p style="text-align: justify;">25. A faint attempt was made by the second respondent to suggest that it has acted according to the direction of the Government. Every Government worth its name is bound to issue directions to industries under its control to run them properly. The direction to terminate excess staff is one such direction. But the Government cannot direct and have not directed the Reprographic Centre to terminate the services of the petitioners illegally. The Centre was bound to act in accordance with law while implementing the directions of the Government. Even Ext. R2(a) Report based on which the decision was taken by the Reprographic Centre says that the workers should be paid the dues at paragraph 6.3 quoted above. It is said:</p><p style="text-align: justify;">'Now KSAVRC has no other option, but to terminate the services of the surplus staff paying their due salaries and other claims as per rules in Force.' </p><p style="text-align: justify;">Therefore, the Reprographic Centre should have acted in accordance with law in terminating the surplus staff.</p><p style="text-align: justify;">26. The petitioners have a case that the finding in Ext. R2(a) and in Ext. P5 that they are surplus is unsustainable. This is a disputed question of fact and the contentions of both sides on this point are kept open.</p><p style="text-align: justify;">27. For all the above reasons, Ext. P5 is quashed as being null and void. The petitioners are deemed to be in service and they will be entitled to all consequential benefits. But, this will not stand in the way of the Reprographic Centre terminating the excess staff in accordance with law. Needless to say, in case the services of the petitioners are not needed, their reinstatement need only be notional, not physical, for completing the formalities for retrenching them in accordance with law. But, the employees will be entitled to all monetary benefits for the period they are kept out of service till they are validly retrenched. It is also clarified that if there are any non-workmen among the employees, they can be retrenched by following the procedure under R. 2.54 of the Service Rules. In other words, in their case, the procedure under Section 25F of the Industrial Disputes Act need not be followed.</p><p style="text-align: justify;">The Original Petitions are allowed as above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[2002(95)FLR1042]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Kerala',
			'sub' => 'Labour and Industrial',
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			'circuit' => null
		)
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		(int) 2 => ''The Law of Industrial Disputes' (fifth Edition'
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$desc = array(
	'Judgement' => array(
		'id' => '727227',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2 and 25F; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 21',
		'appealno' => 'O.P. No. 15419 of 2002',
		'appellant' => 'Mallika Rajam',
		'authreffered' => '',
		'casename' => 'Mallika Rajam Vs. State of Kerala',
		'casenote' => 'Labour and Industrial - retrenchment - Sections 2 (oo) and 25 F of Industrial Disputes Act, 1947, Rule 2.54 of Service Rules and Article 21 of Constitution of India - petitioners challenged impugned Orders terminating them on ground that same violated Rule 2.54 and Section 25 F - impugned Order not falling in any of exemptions enumerated in Section 2 (oo) and thus petitioner's termination was retrenchment - termination made in violation of 25 F void ab initio - termination made in violation of Rule 2.54 illegal - right to life guaranteed under Article 21 includes right to livelihood to which petitioners deprived without requisite notice - held, impugned Order quashed as being null and void.


 - LABOUR  & SERVICES
Appointment: [V.K. Bali, CH, P.R. Raman & S. Siri Jagan, JJ] Post of Pharmacist in Homeopathy Subordinate Service -  Special Rules for Kerala Homeopathy Subordinate Service Rules, 1999 introducing new qualifications  Vacancy arising subsequent to coming into force of the said special rules  Held, Vacancies have to be filled up only in accordance with Special Rules, 1999. Unfilled vacancy that had arisen prior to amendment cannot be filled up by candidate not possessing amended qualifications prescribed by Special Rules. State Government has the power to frame or amend the Special Rules with or without retrospective effect. Mohanan K.R. & anr vs Director of Homeopathy, Kerala Homeopathy Services, Trivandrum & ors. -  The management failed to control the labour forces. The centre failed to meet its operational expenses including salary to the employees. The study report found that the over staffing has made the normal functioning of the unit impossible and has recommended for cutting the employees strength in various categories. The 20th Governing Body meeting held on 4.3.2002, examined the views of the committee and decided to implement the measures recommended by the three member committee wherever possible. The ceatre has no option other than to terminate these excess employees to safeguard the best interest of the institution and its remaining employees. P5 will clearly show that the excess work force is being retrenched, according to seniority. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, can be validated by additional grounds later brought out. The Reprographic Centre as well as the Government accepted this Report. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. ' 20. Here, at best what can be alleged is only a case of mismanagement. 1635 of AIR): It is a well-settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. Now it is well settled that the violation of the principles of natural justice will amount to the violation of the rights of the employee under Article 14 of the Constitution of India.',
		'caseanalysis' => null,
		'casesref' => 'Union of India v. Tulsiram Patel;',
		'citingcases' => '',
		'counselplain' => ' S. James Vincent, Adv.',
		'counseldef' => ' V.K. Beeran, Addl. Adv. and; B.S. Krishnan, Sr. Adv.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2002-07-01',
		'deposition' => 'Original petitions allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' K. Balakrishnan Nair, J.',
		'judgement' => '<p style="text-align: justify;">K. Balakrishnan Nair, J.</p><p style="text-align: justify;">1. The points which arise in all these cases being identical, they are heard together and disposed of by a common judgment.</p><p style="text-align: justify;">2. All the petitioners are employees of the Kerala State Audio Visual & Reprographic Centre, Thiruvananthapuram which is an autonomous Institution established by the Government as per its order dated 28.4.1992. It is a Society registered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act. Its Governing Body contains only Government Officials or their nominees. The Minister for Education of the State will be the Ex-officio Chairman and the Managing Director will be its Executive Director and Member Secretary. It is common case that the said Institution (hereinafter referred to as 'the Reprographic Centre') is amenable to the writ jurisdiction of this Court.</p><p style="text-align: justify;">3. All the petitioners were appointed in the Reprographic Centre and its various units during the years 2000 and 2001 on a regular basis as probationers. All of them have completed their period of probation. Some of the petitioners had earlier spells of temporary appointments also.</p><p style="text-align: justify;">4. The impugned order in all the Original Petitions is the order issued by the Reprographic Centre dated 31.5.2002 terminating the services of the petitioners and others who were found to be excess employees. The impugned order is extracted herein below for convenient reference;</p><p style="text-align: justify;">'Kerala State Audio-Visual and Reprographic Centre is an autonomous institution established by the Government of Kerala as per G.O. (MS) 73/92/H.Edn. dated 28.4.1992. The. functioning of the institution was satisfactory in the earlier stages. But later on, it ran into huge losses. During the years 2000 and 2001,938 persons were seen appointed against the notified vacanciesofonly 186. (Two notifications issued on 5.4.2000 and 13.4.2000No.KSAVRC/2221/2000 dated 5.4.2000 and KSAVRC/2247/00 dated 13.4.2000 respectively). During the months of September and October, 2001, there was labour unrest and the centre became virtually bankrupt. The management failed to control the labour forces. The centre failed to meet its operational expenses including salary to the employees.</p><p style="text-align: justify;">In these circumstances, as per G.O.(MS)/144/2001/H.Edn.dated 22.10.2001 the Govemment of Kerala, appointed a three membercommittee consisting of Sri. G. Jayasankar, Govt. Engineering College, Barton Hill, Thiruvananthapuram, Sri. Mathew V. John, Superintendent, Government Presses, Thiruvananthapuram and Sri. S.UpendranNair,Retd.Addl. Secretary to Govt. to study the functioning of Kerala State Audio Visual and Reprographic Centre and to suggest the measures to uplift the sinking institution. The committee conducted the study in depth and suggested certain measures to revive the unit and its report was submitted during the month of March, 2002. In the study report various measures were suggested for the sustenance and growth of the institution. The study report found that the over staffing has made the normal functioning of the unit impossible and has recommended for cutting the employees strength in various categories.</p><p style="text-align: justify;">The 20th Governing Body meeting held on 4.3.2002, examined the views of the committee and decided to implement the measures recommended by the three member committee wherever possible. As part of the revival measures, the Governing Body decided to terminate the excess staff in the institution wherever necessary, since the appointment of that persons were totally unnecessary and unaffordable.</p><p style="text-align: justify;">After examining the committee's report and considering the present stage of the institution, as per the reference (2) the Gpvernment directed to terminate the services of excess staff in various categories. The ceatre has no option other than to terminate these excess employees to safeguard the best interest of the institution and its remaining employees. In each category, the junior most persons are to be terminated.</p><p style="text-align: justify;">In these circumstances, the following employees are terminated from the service of KeralaState Audio Visual and Reprographic Centre with effect from 1.6.2002. The names of theterminated employees are placed below in category wise.'</p><p style="text-align: justify;">5. From the impugned order, it would appear that the Reprographic Centre has appointed 938 persons against notified vacancies of 186. Therefore, there are excess staff in many categories. So, on the basis of a study conducted by a committee appointed by the Government, it was resolved to terminate the excess employees. The Government have also directed the termination of employees who are in excess of the requirement of the Reprographic Centre. So, the petitioners and others were terminated. The impugned order was published in the Notice Board of the Reprographic Centre on 31.5.2002 and the doors of the Centre were closed before them on the very same day without any notice or warning, and the petitioners and similarly placed employees were rendered unemployed.</p><p style="text-align: justify;">6. The petitioners challenge the impugned order dated 31.5.2002 mainly on three grounds. The first ground of attack is that the petitioners are being terminated in violation of Rule 2.54 of the Kerala State Audio Visual Reprographic Centre Rules on Service Conditions of Employees and Allied Matters. The said Rules in the Service Rules applicable to the petitioners reads as follows:</p><p style="text-align: justify;">'2.54. Termination of Service otherwise than as a Disciplinary Measure:</p><p style="text-align: justify;">The services of an employee who is on probation may be terminated by his being given fourteen days notice or in default of such, notice payment of fourteen days pay.</p><p style="text-align: justify;">Employees who are regularised may be retrenched from service on abolition of posts or on discontinuance of shift work but such retrenchment from service will be in the order of juniority of employee holding the post in aparticular category. Such discharge of a regularised employee shall be after giving notice of one month or wages in lieu thereof. If a shift is restarted, the retrenched employee will have a claim for notice and reappointment.</p><p style="text-align: justify;">Provided that, if there is a lower post on which the employee holds a lien he will be reverted to such lower post instead of being retrenched in the order of juniority and no compensation will be payable in respect of the post from which an employee is reverted for want of vacancy.'</p><p style="text-align: justify;">So, notice or payment of notice pay is obligatory for retrenchment.</p><p style="text-align: justify;">7. The second ground of attack is that their termination from service is retrenchment in terms of Section 2(oo) of the Industrial Disputes Act and the retrenchment has been made in violation of Section 25F of the said Act. The third ground of attack is that the impugned order has been passed without notice or hearing to the petitioners. The petitioners have raised other grounds also in the Original Petitions. In some cases, they dispute the finding that they are in excess. In few cases, they contend that seniority in certain categories has not been followed for ordering retrenchment. It is also pointed out in certain cases that in some categories, the appointments were strictly in accordance with the numbers notified and therefore, the stand of the management that employees appointed in excess of the notified vacancies alone are retrenched, is not correct.</p><p style="text-align: justify;">8. The Reprographic Centre has filed a counter affidavit in O.P. No. 14472/2002 and copies of the same have been served on the counsel appearing in most of the cases. O.P. No. 14472/2002 is treated as the main Original Petition for the purpose of reference to the Exhibits. Exts. P1 to P4 are appointment orders of the petitioners dated 5.3.2001. Ext. P5 is the impugned order dated 31.5.2002. In the counter affidavit it is stated that 'the day-to-day expenses towards the salaries and wages of the employees for running the centre are to be met from the income generated from the commercial activities undertaken by the Centre itself.' It is also pointed out that 'no portion of the grant received from the Government can be expended towards payment of salaries, wages etc.' The reasons for termination of the services of the employees given in the impugned order are reiterated in the counter affidavit. It is submitted that the strength of staff is in excess of requirement and every month the Reprographic Centre requires Rs. 50 Lakhs for payment of salaries and wages. Of late, it was not able to meet its commitment to pay wages which has resulted in unrest among the employees. Therefore, the Government by G.O. (MS) No. 144/2001/H.Edn. dated 22.10.2001 appointed a committee to study on the functioning of the Centre and to suggest ways and means for reviving the Centre. The committee submitted Ext. R2(a) Report in March, 2002. It is submitted that the Governing Body Meeting held on 4.3.2002 discussed Ext. R2(a) Report in detail. It was found that during the years 2000 and 2001,938 employees were appointed. Therefore, the same has resulted in creation of surplus in the work force. In the meantime, the Government also considered the Report and directed the Centre by G.O. (MS) No. 55/2002/H.Edn. dated 30.5.2002 to terminate the surplus staff. 499 employees were found to be in excess. Therefore, the Reprographic Centre ordered the termination of the excess staff and it is submitted that 433 probationers are terminated from service. Of the said 433 employees, 17 had already left the service of the Reprographic Centre and therefore only 416 are affected by the retrenchment.</p><p style="text-align: justify;">9. In the counter affidavit, it is also averred that appointments were made in excess of the notified vacancies and therefore, the application of the principles of natural justice is not attracted in this case. In the counter affidavit, it is asserted that 'no new recruitment will be made in the Centre in any of the posts in which termination is effected or in any of the existing posts'. It is also submitted that the Deputy Accountant General (Audit) has pointed out that the recruitments made in excess were irregular and unjustifiable and it has resulted in creation of avoidable expenditure to, the Centre,</p><p style="text-align: justify;">10. I heard both sides. The petitioners mainly relied on their three contentions mentioned earlier that their termination is made in violation of R. 2.54 of their Service Rules, that the same is ordered in violation of the Section 25F of the Industrial Disputes Act and that the impugned,order is issued in violation of the principles of natural justice. The impugned order and the Report of the Committee basing on which the termination has been ordered will show that the Centre is retrenching excess hands in accordance with the seniority in each category and they will get re-appointment as and when vacancies arise. Apparently, there is nothing wrong with the said stand. Every industry has a right to retrench excess workmen having regard to its requirement. But the termination or retrenchment has to be done in accordance with law after issuing notice or notice pay. But in the case at hand, what was done was, on 31.5.2002, suddenly the petitioners were thrown out of employment without any notice or notice pay. Confronted with this indefensible position, the learned counsel for the Reprographic Centre submitted that the appointments having been made in excess of the notified vacancies are void and, therefore, for the termination of such employees, notice is not required.</p><p style="text-align: justify;">11. It is common case of both sides that the Reprographic Centre is an 'industry' as defined under Section 2(j) of the Industrial Disputes Act. The respondents also did not dispute that if the termination of the petitioners is retrenchment, then the same is made in violation of Section 25R But the learned counsel for the Reprographic Centre would submit that the appointments having been made in excess of the notified strength, no notice is required for their termination. The pleading in this regard is contained in paragraph 9 at page 10 of the counter affidavit of the second respondent which reads as follows:</p><p style="text-align: justify;">'Appointments are also made much in excess of the notified vacancies. Therefore, as the law settled by the Hon'bie Supreme Court, application of the principles of natural justice is not attracted in this case.' </p><p style="text-align: justify;">12. But the learned counsel for the second respondent, the Reprographic Centre, went to the extent of stating that such appointments are void and, therefore, their termination is not retrenchment. An argument unsupported by the pleadings need not be examined by this Court. But still, I am examining that contention also on merits.</p><p style="text-align: justify;">13. The definition of 'retrenchment' is Section 2(oo) of the Industrial Disputes Act reads as follows:</p><p style="text-align: justify;">''retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-</p><p style="text-align: justify;">(a) voluntary retirement of the workman; or</p><p style="text-align: justify;">(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or</p><p style="text-align: justify;">(bb) termination of the service of a workman as a result of the non renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or</p><p style="text-align: justify;">(c) termination of the service of a workman on the ground of continued ill-health;'</p><p style="text-align: justify;">14. Termination of service for any reason whatsoever, except those covered by the enumerated exempted categories, is retrenchment. Normally, in common parlance, retrenchment is understood as removing the excess or chopping of the dead wood. But the Legislature has given the word an artificial meaning under the Industrial Disputes Act. Interpreting the said provision, the Supreme Court has gone to the extent of saying that if a probationer is terminated from service for the reason of his unsuitability, the same will amount to retrenchment (See the decision of the Supreme Court in Management of Karnataka State Transport Corporation v. Boraiah and Anr. (AIR 1983 SC 1320). A Constitution Bench of the Supreme Court in the decision in Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court (1990 (3) SCC 682) after analysing the entire decisions on the interpretation of Section 2(oo) defining 'retrenchment' has held as follows:</p><p style="text-align: justify;">'When we analyse the mental process in drafting the definition of 'retrenchment' in Section 2(oo) of the Act we find that firstly it is to mean the termination by the employer of the service of a workman for any reason whatsoever. Having said so the Parliament proceeded to limit it by including certain types of termination, namely, termination as a punishment inflicted by way of disciplinary action. The other types of termination excluded were (a) voluntary retrenchment; or (b) retrenchment of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation on that behalf; or (c) termination of service of a workman on the ground of continued ill health. Had the Parliament envisaged only the question of termination of surplus labour alone in mind, there would arise no question of excluding (a), (b) and (c) above. The same mental process was evident when Section 2(oo) was amended inserting another exclusion Clause (bb) by the Amending Act 49 of 1984, with effect from August 18, 1984, 'termination of the service of workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry of such contract being terminated under a stipulation in that behalf contained therein'.</p><p style="text-align: justify;">15. The ratio of the decision at paragraph 82 reads as follows:</p><p style="text-align: justify;">'Applying the above reasonings, principles and precedents, to the definition in Section 2(oo) of the Act, we hold that 'retrenchment' means me termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section'.</p><p style="text-align: justify;">From paragraph 1 of the said decision, it can be seen that Civil Appeal No. 3248/81 was one arising out of the termination of the workmen of the Corporation on the ground that the Chairman had no ppwer to appoint them. The Labour Court ordered their reinstatement treating their terrnination as retrenchment. The said Civil Appeal against the'award of the Labour Court was dismissed as evidentfrom paragraph 83 of the said decision.</p><p style="text-align: justify;">16. So, the termination of the service of the petitioners will be retrenchment, if it is not covered by any one of the five exemptions given in Section 2(oo), namely:</p><p style="text-align: justify;">1. Termination as a punishment in disciplinary action.</p><p style="text-align: justify;">2. Voluntaryretirement.</p><p style="text-align: justify;">3. Retirement on reaching superannuation.</p><p style="text-align: justify;">4. Termination on the expiry of the term provided in the contract of appointment.</p><p style="text-align: justify;">5. Termination owing to continued ill-health.</p><p style="text-align: justify;">The impugned order Ext. P5 is not covered by any of the exemptions enumerated above. Ext. P5 will clearly show that the excess work force is being retrenched, according to seniority. In view of the above authoritative pronouncement of the Constitution Bench of the Apex Court (1990 (3) SCC 682), even assuming that the petitioners are being retrenched for being appointed in excess of the notified vacancies, still their termination will be retrenchment. But, I feel that the respondents should not be permitted to contend that the petitioners are being retrenched for some other reason not mentioned in the impugned order. This point is covered by two Constitution Bench decisions of the Apex Court in Commissioner of Police v. Gordhandas Bhanji (AIR 1952 SC 16) and Mohinder Singh Gill v. Chief Election Commissioner (1978 (1) SCC 405). In the latter decision, the Supreme Court said:</p><p style="text-align: justify;">'When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shapeof affidavit orotherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, can be validated by additional grounds later brought out.' </p><p style="text-align: justify;">17. In the case at hand, the impugned order in unambiguous terms states that it is issued for terminating the excess staff (see the underlined portions in the impugned order quoted hereinabove). Therefore, going by the interpretation given to the retrenchment by the Supreme Court, the termination of the employees is retrenchment. Even assuming it is for some other reason as contended by the second respondent, then also it is retrenchment.</p><p style="text-align: justify;">18. Apart from the statements in the impugned order, paragraph 6.3 of Ext. R2(a) also says that the termination is to get rid of the surplus staff and the retrenched staff will be taken back subject to requirement on the basis of their present seniority. The relevant portion in paragraph 6.3 at page 39 of Ext. R2(a) (running page 54 of the counter affidavit), is extracted below:</p><p style="text-align: justify;">'Now KSAVRC has no otheroption. but to terminate the services of the surplus staff paving their due salaries and other claims as per rules in force. This is inevitable, as the employees are not at fault and they cannot be penalised for no fault of theirs. As suggested in para 3-11 Government may consider making separate arrangements to look into this aspect.</p><p style="text-align: justify;">As and when the organisation go for development, after recovering from the present crisis,by following the restructuring and adopting modified code of operations, the retrenched staffshall be taken back on the basis of their present seniority. The KSAVRC shall maintain properrecords/registers to monitor this'.</p><p style="text-align: justify;">The above portion of the Report will show that the termination is retrenchment and the staff so terminated is treated as retrenched staff to be absorbed in future vacancies. The Reprographic Centre as well as the Government accepted this Report. Therefore, the contention of the second respondent that the termination of the services of the petitioners is not retrenchment, is plainly perverse and misconceived.</p><p style="text-align: justify;">19. The learned counsel appearing for the second respondent in support of his contention that as the termination is made on the ground that the appointments made were in excess of the notified vacancies, no notice is required, relied on the decisions of the Supreme Court dealt with herein below. The decision in State of Bihar and Ors. v. The Secretariat Assistant Successful Examinees Union (1994 (1) SCC 126) relied on by the second respondent deals with the appointment to the post of Assistant in the Government Secretariat. It is not a case arising under the Industrial Disputes Act and, therefore, will not apply to the facts of the case. In the decision reported in Premsingh and Ors. v. Haryana State Electricity, Board, 1996 (4) SCC 319, the Supreme Court held as follows:</p><p style="text-align: justify;">'From the above discussion of the case-law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the Court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case'.</p><p style="text-align: justify;">Even assuming there is some irregularity in making appointments to more vacancies than notified, even then, their termination will amount to retrenchment. There is nothing in this decision against the said proposition. It is not considered in the said decision whether the termination of such employees will amount to retrenchment. The decision in Ashwani Kumar v. State of Bihar (1997 (2) SCC 1) deals with the appointment of candidates in an unauthorised manner made against non-existent vacancies in Government service. It was held that such appointments were void. The said decision has no application to the facts of the present case. In the case at hand, the appointment was made by the Governing Body to posts created by them. There were vacancies in posts created by the competent authority while the petitioners were appointed. This is evident from paragraph 3.10 at page 8 (running page 23) of Ext. R2(a) Report which reads as follows:</p><p style="text-align: justify;">'As per Government approved Memorandum of Association, the Governing Body is empowered to create posts and explicitly no Government permission isenvisaged. The Executive Committee and Governing Body which had met multiple times during this period and given approval to these large scale appointments indicate that there was no effective mechanism ineffecting judicial control both at administrative and financial aspects.' </p><p style="text-align: justify;">20. Here, at best what can be alleged is only a case of mismanagement. But, in Ashwani Kumar's case, the appointments were made to non-existing vacancies, unbacked by budgetary provision or the incumbents were appointed to 'imaginary or shadow vacancies'. So, this decision can in no way be pressed into service to support the termination of the petitioners. The learned counsel also relied on the decision of this Court reported in Koodaranhi Service Co-operative Bank v. Lissy (1993 (2) KLT 706). It was a case where an appointment was made against the statutory Rules. The service of the employee was terminated upon instructions issued by the officers of the Department of Co-operation. The Society had no option, but to terminate her from service. So, this Court said, since the termination was not on the basis of any voluntary act of the employer, the termination cannot be said to be retrenchment. In the case at hand, there is no violation of any statutory provision in the appointment of the petitioners and therefore, the said decision will not be applicable to the facts of this case. The learned counsel for the 2nd respondent also relied on the observations of the learned Author O.P. Malhotra in his 'The Law of Industrial Disputes' (fifth Edition) Vol. I (at page 336). It is observed by the learned Author that any appointment contrary to law will be void and therefore, the termination of illegal appointment will not be retrenchment and he states that the view taken by the Kerala High Court in Eranallor Service Co-operative Bank Ltd. v. Labour Court (1986 KLT 801 and 1986 (2) LLJ 492) is the correct view. The conclusion of the Author reads as follows:</p><p style="text-align: justify;">'Thus, though the definition of 'retrenchment' comprehends termination of service, it is not that every termination of service is retrenchment. In other words, every case of discharge simplicitor may not be a case of retrenchment, though there is preponderance of judicial opinion, that every termination of service not falling in any of the exception of Section 2(oo) would amount to retrenchment'.</p><p style="text-align: justify;">The said opinion of the learned Author cannot stand with the authoritative pronouncement of the Supreme Court in the Punjab Land Development & Reclamation Corporation's case (1990 (3) SCC 682). The learned Author while making the above quoted observation, has not referred to this decision of the Constitution Bench of the Apex Court. Apart from that, no one has a case that the appointment of the petitioners is contrary to any statutory provision. Therefore, the contention of the second respondent cannot be accepted. As stated earlier, the second respondent does not have any case either in the impugned order or in Ext. R2(a) report that the appointments were contrary to law and therefore void; and for that reason, the terminations are ordered. But, to be fair to the said respondent, this Court has dealt with its above said contention elaborately.</p><p style="text-align: justify;">21. In view of the above legal position, it can be safely concluded that the termination of the petitioners is retrenchment. Therefore, the termination having been made in violation of the mandatory provisions in Section 25F of the Industrial Disputes Act, is void ab initio. Nobody has disputed the proposition that if the termination is retrenchment, then it is void in view of the violation of the provisions of Section 25F of the Industrial Disputes Act. The petitioners were not given notice or notice pay in lieu of notice or retrenchment compensation. So, the termination is void ab initio. The Apex Court has consistently taken the view that the provisions of Section 25F is mandatory and any violation thereof will render the retrenchment void ab initio (see the decisions of the Apex Court in 'Karnataka State Road Transport Corporation v. M. Boraiah (AIR 1983 SC 1320), Gammon India Ltd. v. Niranjan Das (1984 (1) SCC 509), Workmen v. Food Corporation of India (AIR 1985 SC 670X Narotam Chopra v. Presiding Officer (1989 (2) Supp. (2) SCC 97), Rolston John v. Central Government Industrial Tribunal (AIR 1994 SC 131), Lal Mohamed v. Indian Railway Construction Co. Ltd. (AIR 1999 SC 355), Mohanlal v. Bharath Electronics Ltd. (1981) SC 1253), Man Mohan Rastogi v. Labour Court (AIR 1984 SC 502).</p><p style="text-align: justify;">22. Apart from the violation of Section 25F, the petitioners have been sent out in violation of R. 2.54 of their Service Rules. Notice or notice pay is mandatory under the said Rule. When the employer claims that its actions shall be governed by certain norms in the matter of termination of the services of the employees, it should be compelled to follow those norms on pain of invalidation of the actions taken in violation of them (See the decision of the Apex Court in B.S. Minnas v. Indian Statistical Institute (AIR 1984 SC 363). In the said decision, the Supreme Court held as follows:</p><p style="text-align: justify;">'22. The next question that arises for consideration is whether the appointment ofrespondent No. 4 as Director of respondent No. 1 is illegal because of non-compliance with byelaw 2. Bye-law 2 does require that before appointment, the vacancy in the post of Director shouldbe suitably publicised. In the instant case, it is admitted on both sides that no publicitywhatsoever was given in respect of the vacancy. The contention of Shri Garg, however, is thatthe bye-law having no force of statute, non-compliance with its requirement cannot in any wayaffect the appointment of respondent No. 4 as Director of respondent No. 1. Shri Tarkuhde,however, contended that assuming that the bye-law is not statutory, even so respondent No. 1 wasbound to comply with it. In support of his contention he strongly relied upon Ramana DayaramShetty v. International Airport Authority of India (1979) 3 SCR 1014; (AIR 1979 SC 1628). TheCourt in that case held (At p. 1635 of AIR):</p><p style="text-align: justify;">It is a well-settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciatedby Mr. Justice Frankfurter in Vitarelli v. Seaton, ((1959) 359 US 535: 3 L.Ed. 2d 1012) where the learned Judge said:</p><p style="text-align: justify;">An executive agency must be rigorously held to the standards by which it professes itsaction to be judged. Accordingly, if dismissalfromemploymentis based on a defined procedure,even though generous beyond the requirements that bind such agency, that procedure mustbe scrupulously observed. This judicially evolved rule of administrative law is now firmlyestablished and, if I may add, rightly so. He that takes the procedural sword shall perish withthat sword'. The aforesaid principle laid down by Mr. Justice Frankfurter in Vitarelli v. Seaton,(1959) 3 Law Ed. 2d,lQl2 has be,en accepted as applicable in India by this Court in A.S. Ahluwalia v. Punjab State, (1975) 3 SCR 82: (AIR 1975 SC 984) and in subsequent decision given in Sukhdev v. Bhagatram, (1975) 3 SCR 619: (AIR 1975 SC 1331), Mathew J. quoted the above-referred observation of Mr. Justice Frankfurter with approval.</p><p style="text-align: justify;">23. In view of the pronouncement of this Court on the point it must be held to be obligatory on the part of respondent No. 1 to follow the bye-laws, if the bye-laws have been framed for the conduct of its affairs to'avoid arbitrariness. Respondent No. 1 cannot, therefore, escape the liability for not following the procedure prescribed by bye-law 2.'</p><p style="text-align: justify;">Therefore, for the violation of the provisions contained in R. 2.54 of the Service Rules, the termination of the services of the petitioners is illegal.</p><p style="text-align: justify;">23. Apart from that, whatever be the reasons for the termination of the services of the petitioners who were appointed regularly on probation and who have completed their period of probation, going by the universally accepted principles of natural justice, the sudden termination of their services without notice or hearing, is void ab initio. The termination of their services affects their livelihood. The right to life guaranteed under Article 21 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> will include the right to livelihood also. (See the decisions of the Apex Court in Olga Tellis v. Municipal Corporation of Bombay (AIR 1986 SC 180) and Delhi Transport Corporation v. DTC Mazdoor Congress (AIR 1991 SC 101). In the latter decision, the Supreme Court (at paragraph 223) said:</p><p style="text-align: justify;">'The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them'.</p><p style="text-align: justify;">24. In view of the above legal position, since the right to livelihood of the petitioners was deprived without notice, the said action is void ab initio. Now it is well settled that the violation of the principles of natural justice will amount to the violation of the rights of the employee under Article 14 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. See the decision of the Apex Court in Union of India v. Tulsiram Patel (1985 (3) SCC 398). In the said decision, it was held as follows:</p><p style="text-align: justify;">'95. The principles of natural justice have thus come to be recognised as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject matter of that article. Shortly put, the syllogism runs thus: violation of a ruleof natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of Article 14: therefore, a violation of a principle of natural justice by a State action is a violation of Article 14'.</p><p style="text-align: justify;">So, for this reason also, the impugned order is void.</p><p style="text-align: justify;">25. A faint attempt was made by the second respondent to suggest that it has acted according to the direction of the Government. Every Government worth its name is bound to issue directions to industries under its control to run them properly. The direction to terminate excess staff is one such direction. But the Government cannot direct and have not directed the Reprographic Centre to terminate the services of the petitioners illegally. The Centre was bound to act in accordance with law while implementing the directions of the Government. Even Ext. R2(a) Report based on which the decision was taken by the Reprographic Centre says that the workers should be paid the dues at paragraph 6.3 quoted above. It is said:</p><p style="text-align: justify;">'Now KSAVRC has no other option, but to terminate the services of the surplus staff paying their due salaries and other claims as per rules in Force.' </p><p style="text-align: justify;">Therefore, the Reprographic Centre should have acted in accordance with law in terminating the surplus staff.</p><p style="text-align: justify;">26. The petitioners have a case that the finding in Ext. R2(a) and in Ext. P5 that they are surplus is unsustainable. This is a disputed question of fact and the contentions of both sides on this point are kept open.</p><p style="text-align: justify;">27. For all the above reasons, Ext. P5 is quashed as being null and void. The petitioners are deemed to be in service and they will be entitled to all consequential benefits. But, this will not stand in the way of the Reprographic Centre terminating the excess staff in accordance with law. Needless to say, in case the services of the petitioners are not needed, their reinstatement need only be notional, not physical, for completing the formalities for retrenching them in accordance with law. But, the employees will be entitled to all monetary benefits for the period they are kept out of service till they are validly retrenched. It is also clarified that if there are any non-workmen among the employees, they can be retrenched by following the procedure under R. 2.54 of the Service Rules. In other words, in their case, the procedure under Section 25F of the Industrial Disputes Act need not be followed.</p><p style="text-align: justify;">The Original Petitions are allowed as above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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LAW: Rule 2.54, Section 2(oo, the Industrial Disputes Act, Section 25F, the Governing Body Meeting, the Industrial Disputes Act, Section 2(j, the Industrial Disputes Act, Section 25R, Section 2(oo, the Industrial Disputes Act, the Industrial Disputes Act, A Constitution Bench, Section 2(oo, Section 2(oo, Section 2(oo, the Amending Act 49 of 1984, Section 2(oo, Section 2(oo, the Constitution Bench, the Industrial Disputes Act, the Governing Body, Section 2(oo, the Constitution Bench, the Industrial Disputes Act, Section 25F, the Industrial Disputes Act, Section 25F, Section 25F, Article 21 of the Constitution of India, Article 14 of the Constitution of India, Article 14, Article 14: therefore, Article 14', Section 25F, the Industrial Disputes Act

PERSON: K. Balakrishnan Nair, Reprographic Centre, Sri, G. Jayasankar, Sri, Mathew V. John, Sri, Retd, Reprographic Centre, Reprographic Centre, Exhibits, Lakhs, Boraiah, Anr, Mohinder Singh Gill, Lissy, O.P. Malhotra, M. Boraiah, Niranjan Das, Narotam Chopra v., Rolston John v. Central Government Industrial Tribunal, Lal Mohamed v., Mohan Rastogi, B.S. Minnas v., shouldbe, Shri Tarkuhde, Ramana DayaramShetty v., Justice Frankfurter, Vitarelli, Seaton, Justice Frankfurter, Vitarelli, Law Ed, Mathew J. quoted, Frankfurter, Olga Tellis v., Tulsiram Patel, open.27

NORP: J.1, R., Ashwani, R., R.

ORG: Thiruvananthapuram, Government, Society, State, the Ex-officio, Institution, the Reprographic Centre', the Reprographic Centre, the Original Petitions, the Reprographic Centre, the Government of Kerala, KSAVRC/2221/2000, Barton Hill, Thiruvananthapuram, Thiruvananthapuram, Govt, Kerala State Audio Visual, KeralaState Audio Visual, the Reprographic Centre, the Reprographic Centre, the Notice Board of, the Reprographic Centre, 31.5.2002, Allied Matters, Termination of Service, the Original Petitions, The Reprographic Centre, Original Petition, Centre, Government, the Reprographic Centre, Ext, Government, the Centre by G.O. (MS, the Reprographic Centre, the Reprographic Centre, Committee, 31.5.2002, the Reprographic Centre, the Reprographic Centre, the Reprographic Centre, the Hon'bie Supreme Court, the Reprographic Centre, Court, Legislature, the Supreme Court, the Supreme Court in Management of Karnataka State Transport Corporation, AIR 1983 SC 1320, the Supreme Court, Punjab Land Development and Reclamation Corporation Ltd., Labour Court, Parliament, Parliament, The Labour Court, Civil Appeal, the Labour Court, Ext, the Apex Court, the Apex Court, Gordhandas Bhanji, AIR 1952, SC, the Supreme Court, Court, the Supreme Court, Ext, KSAVRC, KSAVRC, The Reprographic Centre, Government, the Supreme Court, State of Bihar and Ors, Haryana State Electricity, Board, the Supreme Court, State, State, Court, State, Government, Ext, Memorandum of Association, The Executive Committee, Court, Koodaranhi Service Co-operative, Bank, the Department of Co-operation, Society, Court, the Kerala High Court, Bank Ltd., Labour Court, the Supreme Court, the Punjab Land Development & Reclamation Corporation's, the Apex Court, Court, The Apex Court, the Apex Court, Karnataka State Road Transport Corporation, AIR 1983 SC 1320, Gammon India Ltd., Workmen v. Food Corporation of India, AIR 1985, SC, Indian Railway Construction Co. Ltd., AIR 1999, Mohanlal v. Bharath Electronics Ltd., Labour Court, AIR 1984 SC 502).22, the Apex Court, Indian Statistical Institute, AIR 1984 SC 363, the Supreme Court, Shri Garg, International Airport Authority of India, AIR 1979 SC, TheCourt, Court, AIR 1975 SC 984, AIR 1975 SC, Court, to'avoid, the Apex Court, Municipal Corporation, AIR 1986, SC, Delhi Transport Corporation, DTC, Mazdoor Congress, AIR 1991, SC, the Supreme Court, the Apex Court, Union of India, Court, State, State, void.25, Government, the Reprographic Centre, Centre, the Reprographic Centre, KSAVRC, the Reprographic Centre, Ext, Ext, the Reprographic Centre, The Original Petitions

DATE: 28.4.1992, the years 2000 and, 2001, 28.4.1992, the years 2000, the months of September, October, 2001, the month of March, 2002, 4.3.2002, the very same day, fourteen days, fourteen days, one month, 14472/2002, 14472/2002, March, 2002, the years 2000, 1990, August 18, 1984, 1990, 1978, 1994, 1996, 1997, 1993, 1986, 1986, 1990, 1984, 1989, 1994, 1981, 1253, 1979, 1014, 1628, 1959, 2d 1012, 1975, 1975, 1331, 1985

CARDINAL: 31.5.2002, 2001,938, 186, Two, 5.4.2000, 5.4.2000, 13.4.2000, 22.10.2001, three, three, 2, 1.6.2002, 938, 186, three, 5.3.2001, 31.5.2002, 50, 144/2001, 22.10.2001, 4.3.2002, 2001,938, 30.5.2002, 499, 433, 433, 17, only 416, three, 2.54, 9, 10, 12, 3, 682, 82, 1, 3248/81, 83, one, five, 3, 682, 16, 1, 405, 17, 6.3, 6.3, 39, 54, 3, 1, 126, 4, 319, 2, 1, 3.10, 8, 23, 20, 2, 706, 336, 2, 492, 3, 682, 1, 509, 2, 2, 97, 131, 355, 2.54, 4, 1, 2, 2, 4, 1, 1, 3, 1635, 359, 535, 3, 2d, 3, 82, 3, 619, 1, 2.54, 180, 223, 3, 398, one, 6.3

GPE: Kerala, 31.5.2002, Centre, O.P., H.Edn, Centre, Centre, H.Edn, Centre, Centre, follows:'When, misconceived.19, Premsingh, Ashwani, Bihar, KLT, Ext, US, India, A.S., Sukhdev v. Bhagatram, Force, Ext

ORDINAL: 20th, first, second, third, second, second, firstly, second, second, second, second, 2nd, second, second, second

PRODUCT: Report, Report, Report, Kumar

WORK_OF_ART: Centre,10, the Governing Body, 'The Law of Industrial Disputes' (fifth Edition

MONEY: two Constitution Bench

EVENT: KLT 801 and