IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 WP(C).No. 40366 of 2003(E) -------------------------- PETITIONER: ------------ M/S.KERALA STATE HANDLOOM DEVELOPMENT CORPORATION LTD., PM 32/249, THILLEN ROAD, CANNANORE 670 001 REPRESENTED BY ITS MANAGING DIRECTOR, MR.UNEENKUTTY. BY ADV. . SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SMT.PRIYA MAHESH SMT.PRIYA MANJOORAN RESPONDENTS: ------------- 1. SRI.K.P.KALADARAN, GEETALAYAM, P.O.KEEZHARA, CHERUKUNNU, KANNUR 670 301. 2. INDUSTRIAL TRIBUNAL, KOZHIKODE. BY ADV. SRI.M.A.NISSAR FOR R1 SRI.S.M.PREM FOR R1 SMT.K.P.SANTHI FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 40366/03. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE AWARD BY R2. P2. COPY OF THE CLAIM STATEMENT BEFORE R2. P3. COPY OF THE WRITTEN STATEMENT BEFORE R2. P4. COPY OF THE REJOINDER BY R1. P5. COPY OF THE GOVT. ORDER DTD.11.5.71. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No.40366 of 2003 ================== Dated this the 16th day of June, 2008 J U D G M E N T The petitioner herein is the Kerala State Handloom Development Corporation Ltd., a fully Government owned company. They are challenging Ext.P1 award of the Industrial Tribunal, Kozhikode, in I.D.No.28/1999. Ext.P1 is the award. 2. The issue referred for adjudication was: “Whether the denial of employment to Sri.K.P.Kaladharan is justifiable or not. If not what are the reliefs entitled to the workman Sri.K.P.Kaladharan.” 3. The Tribunal found that the workman was employed for 240 days or more within a continuous period of 12 months and therefore, the services of the workman could not have been dispensed with except after complying with Section 25F of the Industrial Disputes Act and since Section 25F was not complied with while terminating the services of the workman, it was held that the retrenchment was bad. Consequently, the Tribunal held that the non-employment of the workman from 1.2.1997 is illegal and unjustified directing reinstatement with full back wages, w.p.c.40366/03 2 continuity of service and other attendant benefits as if there was no termination of service at all. This finding is under challenge in this writ petition. 4. The contention of the petitioner is that the workman was only a temporary employee engaged for some time. The petitioner being a Government company, regular appointments are to be made through PSC only and pending regular appointment, the workman has been engaged purely on a temporary basis without any selection process and therefore, as and when the petitioner decides that his services are no longer required, the workman has to leave the establishment. The petitioner, therefore, submits that there is no question of retrenchment involved therein. 5. In answer to the same, the learned counsel for the workman would contend that the workman has been working in the establishment from 1990 onwards till 1997 continuously and therefore, his services could not have been dispensed with without complying with the provisions of the Industrial Disputes Act. He, therefore, supports the award. 6. I have considered the rival contentions in detail. w.p.c.40366/03 3 7. It is not disputed before me that the petitioner is a fully owned Government undertaking and that the regular appointments in the company are through Public Service Commission. A Division Bench of this court in Thankamani v. Civil Supplies Corporation [2006 (1) KLT Short Notes 5 {Case No.7}] held thus: “The Kerala State Civil Supplies Corporation Limited is a fully owned by the Government of Kerala. It is an instrumentality of the State. As such, the Corporation is bound by the mandates of Articles 14 and 16 of the Constitution of India. It goes without saying that the Corporation can make appointments to the services of the Corporation only in accordance with the principles contained in Articles 14 and 16 of the Constitution of India in so far as all citizens seeking employment under the Corporation are entitled to have equal opportunity to be considered for such appointments. Admittedly, the workman was not employed after complying with any procedure whatsoever ensuring equal opportunity to the countless unemployed persons who also may be entitled to be considered for such appointments. That being so, the appointment/engagement of the appellant-workman, if any, itself is ab initio void and she cannot sustain any claim based on such illegal appointment.” 8. The ratio of this decision squarely applies to the facts of this case. Admittedly, the workman had not undergone any selection process. If he is allowed to continue in service, that would amount to back door appointment by the concerned manager without a selection process, which cannot be permitted in law, since that would amount to violation of the fundamental rights of others who are also entitled to compete for such w.p.c.40366/03 4 appointment, under Articles 14 and 16 of the Constitution of India. That being so, the appointment of the workman was ab initio void and therefore, he cannot seek right to continue on the basis of the provisions of the Industrial Disputes Act. The decision of the Supreme Court in SECRETARY, STATE OF KARNATAKA AND OTHERS V. UMADEVI (3) AND OTHERS [(2006)4 SCC 1] also supports the case of the management. Therefore, the findings of the Tribunal in Ext.P1 are clearly unsustainable. Accordingly, Ext.P1 award is quashed and consequently the workman involved in the dispute is not entitled to any relief. However, the workman shall be paid an amount equivalent to compensation under Section 25F purely as a benevolent gesture, which shall be paid within one month from the date of receipt of a certified copy of this judgment. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.40366/03 5