JUDGMENT
Bhaskaran Nambiar, J.
1. Accepting that the Posts and Telegraphs Department, (P & T Department–in short) is an industry, are the temporary employees in this Department bound by the rules framed under Article 309 of the Constitution, to the exclusion of the provisions contained in Chapter V-A of the Industrial Disputes Act, or can the service rules be ignored in preference to the statutory provisions in the Industrial Disputes Act? This, in short, is the important point arising before the Full Bench in these writ appeals. The brief facts are these:
2. The petitioners in the two writ petitions were employed as temporary Clerks in the P & T Department. Their services were terminated by the postal authorities. This Court set aside those orders holding that the termination was illegal. They were accordingly re-instated; but the Department allowed their claim for salary only for three years preceding the date of the High Court order. The petitioners claimed salary for the entire period they were out of service and moved the Central Government Labour Court under Section 33(c)(2) of the Industrial Disputes Act for determination of the monetary benefits due to them.
3. The Department took a preliminary objection that the petitioners are not workmen employed in any industry and therefore the Labour Court had no jurisdiction. The preliminary objection was upheld and the application was dismissed.
4. The order was challenged by the petitioners in the two writ petitions. The writ petitions have been allowed, the order of the Labour Court set aside and the matter remanded for fresh consideration. The learned Judge held that P & T Department is an industry and despite the service rules under Article 309, the provisions of the Industrial Disputes Act would apply. The learned Judge reasoned thus:
In advancing these arguments the respondents have not taken note of the field which the Act occupies. The Industrial Disputes Act is not primarily concerned with the actual service conditions of the employees as such. The Act as its preamble says is for the purpose of making provision for the investigation and settlement of industrial disputes. It is the product of the aftermath of the industrial revolution when new ideas of social justice and fair play as between capital and labour came into force. India emerging from fuedal period sudden by to the industrial age had to take note of the new industrial legislations in the developed countries and apply the same here with necessary modification. Peace in industry is the principle underlying the Act and therefore in the settlement of industrial disputes the contract between the parties which in the circumstances could only mean the rules framed by the employers, the dominant partner is not the prime basis for decision. The industrial courts functioning under the Act are not enforcing the common law of the land or the contract between the parties but deciding questions in accordance with fair and equitable principles on the basis of the conceptions of industrial relations which the civilized world have to accept. The industrial court is enabled to go beyond the contract between the parties. Therefore framing of rules by the Government for its servants functioning in a public utility service as Post and Telegraph, Telephones or Railways will not in any manner entrench on the field occupied by the Industrial Disputes Act which is a special legislation dealing with settlement of industrial disputes. We have to take into account that by the Act, means are secured by which labour practices which are regarded as unfair are frustrated and the policy of collective bargaining as a road of industrial peace is secured.
No doubt generally one hardly thinks in terms of an industry when regard be had to the Government and its servants even in non-regal spheres. But as Chandrasekhara Aiyer J. observed a quarter of a century back the Parliament can give the words industry and industrial disputes a wide comprehensive import to meet the requirements of a rapidly progressing industrial economy so as to bring about fair and satisfactory adjustment of relations between employers and workmen in a variety fields of activity. If in any particular department, the application of the Act results in difficulties then the remedial measures will have to be taken by the legislature and not by a Judge in deciding a case. The judge can only look to policy matters only to the extent that the same is clearly reflected in the legislation.
The Department challenges this judgment in these two appeals and considering the general importance of the questions involved, the matter has been referred to a Full Bench. The Senior Central Government Standing Counsel Sri Abdul Azeez, contended that the petitioners were governed by the special Rules framed under Article 309 of the Constitution, their services are liable to be terminated, and their monetary claim is limited under those rules and the Industrial Disputes Act cannot be invoked in their case. He elaborated his points under five main heads.
(a) Industrial Disputes Act will not apply to the area covered by the rules framed under Article 309 of the Constitution.
(b) The principle “Generalibus specialia derogant” applies and special rules under Article 309 should prevail over the general provision under the Industrial Disputes Act.
(c) The subsequent rules under Article 309 override the earlier provision of the Industrial Disputes Act.
(d) Section 33(c)(2) of the Industrial Disputes Act in its entirety cannot apply to Government Servants and
(e) In any case, the Industrial Disputes Act in its entirety cannot apply to all the Government Servants.
5. Bound we are by the decision of the Supreme Court in the Bangalore Water Supply & Sewerage Board v. A. Rajappa and Ors. 1978-I L.L.J. 349, rightly, the Senior Central Government Counsel did not dispute the proposition that the P & T Department is an industry. To appreciate however, the points in controversy, it is necessary to extract certain passages from the judgment of the Supreme Court in the above case. Justice Krishna Iyer speaking on behalf of himself, Bhagvati and Desai JJ. observed thus in paragraphs 46 & 47:
In any case, it is open to Parliament to make law which govern the State’s relations with its employee. Articles.309 to 311 of the Constitution of India, the enactments dealing with the Defence Forces and other legislation dealing with employment under statutory bodies may, expressly or by necessary implication, exclude the operation of the Industrial Disputes Act, 1947. That is a question of interpretation and statutory exclusion; but, in the absence of such provision of law, it may indubitably be assumed that the key aspects of public administration like public justice stand out of the circle of industry. Even here, as has been brought out from the excerpts of ILO documents it is not every employee who is excluded but only certain categories primarily engaged and supportively employed in the discharge of the essential functions of constitutional Government. In a limited way, this head of exclusion has been recognised throughout.
Although we are not concerned in this case with those categories of employees who particularly come under departments charged with the responsibility for essential constitutional functions of Government, it is appropriate to state that if there are industrial units severable from the essential functions and possess an entity of their own it may be plausible to hold that the employees of those units are workmen and those undertakings are industries. A blanket exclusion of every one of the host of employees engaged by Government in departments falling under general rubrics like, justice, defence, taxations, legislature may not necessarily be thrown out of the umbrella of the Act. We say no more except to observe that closer exploration, not rejection is necessary.
and in paragraph 111 shows:
Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within Section 2(j).
Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby.
Chief Justice Beg observed thus:
I would also like to make a few observations about the so-called “sovereign” functions which have been placed outside the field of industry. I do not feel happy about the use of the term “sovereign” here. I think that the term “sovereign” should be reserved, technically and more correctly, for the sphere of ultimate decisions. Sovereignty operates on a sovereign plans of its own as I suggested in Kesavananda Bharati’s case supported by a quotation from Earnest Harker’s Social and Political Theory. Again, the term “Regal”, from which the term “sovereign” functions appears to be derived, seems to be a misfit in a Republic where the citizen shares the political sovereignty in which he has even a legal share, however small, in as much as he exercised the right to vote. What is meant by the use of the term “sovereign”, in relation to the activities of the State, is more accurately brought out by using the term “governmental” functions although there are difficulties here also in as much as the Government has entered largely new fields of industry. Therefore, only those services which are governed by separate rules and constitutional provisions, such as Articles.310 and 311 should, strictly speaking, be excluded from the sphere of industry by necessary implication.
I am impressed by the argument that certain public utility services which are carried out by governmental agencies or corporations are treated by the Act itself as within the sphere of industry. If express rules under other enactments govern the relationship between the State as an employer and its servants as employees it may be contended, on the strength of such provisions, that a particular set of employees are outside the scope of the Industrial Disputes Act for that reason. The special excludes the applicability of the general. We cannot forget that we have to determine the meaning of the term ‘industry’ in the context of and for the purposes of matters provided for in the Industrial Disputes Act only.
The thrust of the submission of the learned standing counsel is based on the passages in the Supreme Court judgment extracted above and he elaborated his arguments thus:
6. Rules framed by the President of India in exercise of the powers conferred by Article 309 and Article 148(5) of the Constitution are special laws governing the service conditions of civil servants and these special laws exclude the operation of the general provisions in the Industrial Disputes Act. In exercise of these powers, the President of India has framed the following rules:
(i) The Fundamental Rules,
(ii) The Supplementary Rules.
(iii) The Central Civil Service (Classification, Control and Appeal) Rules, 1965.
(iv) The Central Civil Services (Pension) Rules, 1972.
(v) The Central Civil Services (Temporary Services) Rules, 1965.
(vi) The Central Civil Services (Conduct) Rules.
(vii) The Central Civil Services (Leave, Travel concession) Rules.
(viii) The Central Civil Services (General Provident Fund Rules).
These rules are statutory provisions which govern the service conditions and the relationship between the Union Government on the one hand and the Civil Servants on the other. Since these rules occupy the field covered by the more general provisions of the Act, these special rules exclude the applicability of the general provisions contained in the Act.
7. He has invited our attention to the following entries in list 1.
7. Industries declared by Parliament by law to be necessary for the purpose of defence or for prosecution of war.
31. Post and telegraphs, telephones, wireless, broadcasting and other like forms of communication.
52. Industries, the control of which by Union is declared by the Parliament by law to be expedient in the public interest.
61. Industrial disputes concerning Union employees.
70. Union Public Services; all-India Services, Union Public Service Commission.
and in list-II
24. Industries subject to the provisions of Entries 7 and 52 of list-I.
41. State public Services; State Public service commission
and in list-III
22. Trade Unions, industrial and labour disputes.
and contended that in respect of the industries specifically covered by specified entries, a separate and independent legislation is contemplated to cover industrial relations. The Industrial Disputes Act is not a comprehensive legislation covering particular industries specifically enumerated in list-I.
8. The learned Counsel for the respondents on the other hand contended that when once it is held that the P & T Department is an industry, all the provisions of the Act will be applicable to Government servants, that the Industrial Disputes Act is a special provision while the service rules are general in their operation, that the service rules cannot entrench on the field occupied by the Industrial Disputes Act and that the beneficial objects of the Industrial Disputes Act will be deprived to the large number of workmen in Government Offices, that the remedy under Section 33(c)(2) is the only remedy available to the petitioners and thus the contentions of the appellants have to fail.
9. The question for consideration is whether the rules under Article 309 of the Constitution expressly or by necessary implication exclude the operation of the Industrial Disputes Act. On this aspect, the observations of the majority in the Bangalore Water Supply Case (supra) are sufficiently instructive and we shall summarise the points highlighted in that judgment for the purpose of the present disputes:
(a) Rules under Article 309 of the Constitution “may expressly or by necessary implication exclude the operation of the Industrial Disputes Act. That is a question of interpretation and statutory exclusion.”
(b) Constitutional and competently enacted legislative provisions may well remove from the scope of the Industrial Disputes Act categories which may have covered thereby.
(c) Only those services which are governed by separate rules and constitutional provisions such as Article 310 and 311, should, strictly speaking, be excluded from the sphere of industry by necessary implication.” (Beg C.J. concurring)
(d) If express rules under other enactments govern the relationships between the State as an employer and its servants as employees, it may be contended, on the strength of such provision, that a particular set of employees are outside the scope of the Industrial Disputes Act for that reason. The special excludes the applicability of the general. (Beg C.J. concurring)
10. Before deciding whether there is any express or implied exclusion of the provisions of the Industrial Disputes Act, it is necessary first to decide whether the rules under Article 309 can exclude the operation of any Act validly passed by Parliament or the State Legislatures. It is thus necessary to ascertain the scope and effect of the rules made under Article 309 and they can be best understood in the words of the Supreme Court in B.S. Badera v. Union of India thus:
In this case, there is no Act of the appropriate-legislature regulating the recruitment and conditions of service, under the 2nd respondent and therefore, the main part of Article 309 is not attracted. But, under the Proviso therein, the President has got full power to make rules, regulating the recruitment and conditions of service of persons, under the 2nd respondent. Further, under the Proviso, such person, as may be directed by the President, can also make rules, regulating the recruitment and conditions of service of persons, under the 2nd respondent. The rules so made, either by the President, or such person, as he may direct, will have currency until provision, in that behalf, is made by or under an Act, of the appropriate legislature, under Article 309.
24. It is also significant to note that the provision to Article 309, clearly lays down that ‘any rules so made shall have effect, subject to the provisions of any such Act’. The clear and unambiguous expressions, used in the Constitution, must be given their full and unrestricted meaning unless hedged–in by any limitations. The rules, which have to be ‘subject to the provisions of the Constitution’, shall have effect, ‘subject to, the provisions of any such Act.’ This is, if the appropriate legislature has passed an Act, under Article 309, the rules, framed under the Proviso, will have effect, subject to that Act; but, in the absence of any Act, of the appropriate legislature, on the matter, in our opinion, the rules, made by the President or by such person as he may direct, are to have full effect, both prospectively and retrospectively. A part from the limitation, pointed out above, there is none other, imposed by the proviso to Article 309, regarding the ambit of the operation of such rules. In other words, the rules, unless they can be impeached on grounds such as breach of Part III, or any other constitutional provision, must be enforced, if made by the appropriate authority.
11. The Constitutional duty thus assigned under Article 309 to the President and the Governor is legislative in character, exercisable only in the absence of an Act of the appropriate legislature in that behalf. Backed by this constitutional power, this legislative authority naturally is prospective and retrospective in its operational field. Thus the rules framed under Article 309 are “Constitutional and competently enacted legislative provisions” which admit of statutory exclusion.
12… The Industrial Disputes Act is an existing law enacted by virtue of the powers conferred under the Government of India Act, 1973 with reference to entry 28 in the concurrent list which is similar to entry 22 in List-III and reads thus:
Trade unions; industrial and labour disputes.
Under the Government of India Act, however, there was no entry in List-I similar to entry 61 of List-I in the Constitution reading “Industrial disputes concerning union employees”.
13. Thus there are two legislative measures, (1) Rules under Article 309 of the Constitution with respect to an entry in List-land (2) an existing law, Industrial Disputes Act with reference to a concurrent entry in List-III, Are the two laws repugnant to each other? Repugnancy can arise only where the Union and State Acts occupy the same field in respect of one of the matters, enumerated in the concurrent list. The recent decision of the Supreme Court in Hoachet Pharmaceuticals Ltd. v. State of Bihar makes the position absolutely clear, where it states:
The underlying principle is that the question of repugnancy arises only when both the legislatures are competent to legislate in the same field i.e., with respect to one of the matters enumerated in the Concurrent List. Hence, Article 234(1) cannot apply unless both the Union and the State Laws relate to a subject specified in the Concurrent List and they occupy the same field.
14. When then there is no question of repugnancy between the special rules and the Industrial Disputes Act, it is contended that the Industrial Disputes Act has occupied the field and the special rules cannot be a “Legislative trespasser” to reap the “Forbidden fruit”. We are afraid that the contention so advanced proceeds on a misconception of the judicial concept underlying “occupied field”. The theory of occupied field postulates an identity of the subject matter, “complete, exhaustive or exclusive”, assumes an intention to cover wholly that particular field and prevents a direct collision between two conflicting provisions made by two different legislative bodies when “obedience to one is disobedience of the other”. It is an interpretative device under which the predominance of the legislative powers of the parliament is assured against a possible legislative exercise in respect of the same subject matter by any other legislative body.
15. In Forbes v. Attorney-General for Manitoba 1937 A.C. 260 Lord Macmillion delivering the judgment of the Privy Council observed:
The doctrine of the “occupied field” applies only where there is a clash between Dominion legislation and provincial legislation within an area common to both. Here there is no conflict. Both income taxes may coexist and be enforced without clashing. The Dominion reaps part of the field of the Manitobe citizen’s income. The province reaps another part of it.
16. In the present case, Parliament has the exclusive power to make laws in respect of union public services (entry 70 in List-I) and in respect of industrial and labour disputes (entry 22) in List III. There is thus no question of a clash between a Central and State enactment. The theory of occupied field cannot have relevance when thus there is no “Legislature trespass” by any other legislative body. The contention therefore that the Industrial Disputes Act is already occupied by Parliament and therefore Parliament can make no law in respect of union services cannot be accepted. The power conferred under the proviso to Article 309 cannot be affected solely because there is a law relating to industrial disputes which apply to certain classes of Government servants as well.
17. When thus there are two legislative provisions, both operating in their respective fields, the attempt should be to apply the principle of harmonious construction, not condemnation of the one by the other, but to adopt a meaningful reverence for co-existence of both.
18. The larger question that the existence of rules under Article 309 of the Constitution will automatically exclude the provisions of the Industrial Disputes Act need not detain us, for, we are satisfied that in the case before us it is sufficient if we consider whether the specific rules expressly or impliedly exclude the relevant provisions in the Industrial Disputes Act. We shall therefore read Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965:
(3)(1)(a) The service of a temporary Government servant who is not in quasipermanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant.
b) The period of such notice shall be one month; Provided that the service of any such Government servant may be terminated forthwith and on such termination the Government shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services; or as the case may be for the period by which such notice falls short of one month.
x x x
(2)(a) Where a notice is given by the appointing authority terminating the services of a temporary Government servant or where the services of any such Government servant is terminated on the expiry of the period of such notice or forthwith by payment of pay plus allowance the Central Government or any other authority specified by the Central Government in this behalf or a head of Department, if the said authority is subordinate to him, may of its own motion or otherwise, reopen . the case and after making such enquiry as it deems fit–
(i) confirm the action taken by the appointing authority;
(ii) withdraw the notice;
(iii) reinstate the Government servant in service; or
(iv) make such other order in the case as it may consider proper Provided that except in special circumstances, which should be recorded in writing, no case shall be re-opened under this sub-rule after the expiry of three months;
a)(i) From the date of notice, in a case where notice is given.
(ii) From the date of termination of service, in a case where no notice is given.
(iii) Where a Government servant is re-instated in service under Sub-rule (2) the order of re-instatement shall specify–
(i) the amount or portion of pay and allowances if any, to be paid to the Government servant for the period of his absence between the date of termination of his services and the date of his re-instatement:
(ii) Whether the said period shall be treated as a period spent on duty for any specified purposes.
and Section 33(c)(2) of the Industrial Disputes Act:
Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government.
19. It is clear therefore that the rights and liabilities of the Temporary Government servants in the P & T Department are to be found in those rules framed under Article 309 of the Constitution. The duration of the temporary service, the mode of termination, the conditions under which they can claim any monetary benefit on termination of their service are all contained in these service rules.
20. It is now no longer in dispute that the Government servants, unlike their counterparts in industrial establishments are not mere contractual employees, but have acquired a status protected by statutes and guaranteed by the constitutional safeguards under Article 310 of the Constitution. The service of the temporary Government servants in the P & T Department can be terminated by a mere one month’s notice in writing free from either side and the Government servant is entitled to claim pay and allowance for this notice period. This is independent of the Industrial Disputes Act and stands in a different and distinct category altogether. It has legislative competence and constitutional support. The court cannot thus ignore the rules; nor efface them from the statute book simply because there is the Industrial Disputes Act. Chapter A of the Industrial Disputes Act can be pressed into service only in those cases where these special rules relating to temporary government servants cannot apply. It can thus be safely ruled that the special rules under Article 309 in respect of the temporary employees in the P & T Department exclude the provisions in Chapter A of the Industrial Disputes Act.
21. The implied exclusion of these provisions of the Industrial Disputes Act can be gathered also from the maxim “generalia specialibus non derogant”. The special excludes the general and in L.I.C. v. D.J. Bahadur 1981-I L.L.J. 1, the Supreme Court observed thus:
What is special or general is wholly a creature of the subject and context and may vary with situation, circumstances and angle of vision. Law is no abstraction but realises itself in the living setting of actualities. Which is a special provision and which general, depends on the specific problem, the topic for decision, not the broad rubric nor any rule of thumb. The peaceful co-existence of both legislations is best achieved, if that be possible, by allowing to each its allotted field for play. Sense and sensibility, not mechanical rigidity gives the flexible solution. It is difficult for me to think that when the entire industrial field, even covering municipalities, universities, research councils and the like, is regulated in the critical area of industrial disputes by the ID Act, Parliament would have provided an oasis for the Corporation where labour demands can be unilaterally ignored. The general words in Section 11 and 49 must be read contextually as not covering industrial disputes between the workmen and the Corporation.
22. In considering the validity of the Gold (Control) Act, Act.45 of 1968, the Supreme Court in Harakchand Ratanchand Banthia and Ors. v. Union of India and Ors. had to consider the scope of two entries–Entry 52 in List-I–Industries, the control of which by the union is declared by parliament by law to be expedient in the public interest–and Entry 27 in List-II–Production, supply and distribution of goods and subject to the provisions of Entry 33 of List-III. Their Lordships also considered whether definition of “industry” in the Industrial Disputes Act can be imported for understanding the scope of the expression ‘Industries’ in the entries in the Constitution. The relevant observations are these:
The question to be considered is what is the meaning of the word ‘Industry’ in Entry 52 of List-I, Entry 24 of List-II and Entry 33 of List-III. Whatever may be its connotation it must bear the same meaning in all these entries which are so interconnected that conflicting or different meanings given to them would snap the connection. In the shorter Oxford English Dictionary the word “Industry” is defined as a particular branch of productive labour; a trade or manufacture”. According the Webster’s Third New International Dictionary (1961 edn.) the word ‘industry’ means (a) systematic labour especially for the creation of value; (b) a department or branch of a craft, art, business or manufacture, a division of productive and profit making labour especially one that employs a large personnel and capital especially in manufacturing; (c) a group of productive or profit making enterprises or organisations that have a similar technological structure of production and that produce or supply technically substitutable goods, services or sources of income.
It was said that if the word “Industries” is construed in this wide sense, Entry 27 of List-II will lose all meaning and content. It is not possible to accept this contention for, Entry 27 is a general Entry and it is a well-recognised canon of construction that a general power should not be so interpreted as to nullify a particular power conferred by the same instrument. In Tika Ramji v. State of Uttar Pradesh 1956 S.C.R. 393 : the expression “industry” was defined to mean the process of manufacture or production and did not include raw materials used in the industry or the distribution of the products of the industry. It was contended that the word “industry” was a word of wide import and should be construed as including not only the process of manufacture or production but also activities antecedent thereto such as acquisition of raw materials and subsequent thereto such as disposal of the finished products of that industry. But this contention was not accepted. It was contended by Mr. Daphtary that if the process of production was to constitute “industry” a process of machinery or mechanical contrivance was essential. But we see no reason why such a limitation should be imposed on the meaning of the word “industry” in the legislative lists. Similarly it was argued by Mr. Palkhivala that the manufacture of gold ornaments was not an industry because it required application of individual art and craftmanship and aesthetic skill. But mere use of skill or art is not a decisive factor and will not take the manufacture of gold ornaments out of the ambit of the relevant legislative entries. It is well settled that the entries in the three lists are only legislative heads or fields of legislation and they demarcate the area over which the appropriate legislature can operate. The legislative entries must be given a large and liberal interpretation, the reason being that the allocation of subjects to the lists is not by way of scientific or logical definition but is a mere enumeration of broad and comprehensive categories. It is not however, necessary for the purpose of this case to attempt to define the expression “industry” precisely or to state exhaustively all its different aspects. But we are satisfied in the present case that the manufacture of gold ornaments by goldsmiths in India is a “process of systematic production” for trade or manufacture and so falls within the connotation of the word “industry” in the appropriate legislative entries. It follows, therefore, that in enacting the impugned Act parliament was validly exercising its legislative power in respect of matters covered by Entry 52 of List-I and Entry 33 of List-III.
x x x
The history of the legislation made it manifest that the Industrial Disputes Act was introduced as an important step in achieving social justice. The Act seeks to ameliorate the service conditions of the workers, to provide a machinery for resolving their conflicts and to encourage their co-operative effort in the service of the community. It was in this context that the expression “industry” was interpreted in Banerjee’s case and Maker’s case, (supra). It was an interpretation adopted by this Court secundum subjecte materies. But what we are concerned in the present case is the interpretation of the word ‘industry’ in the legislative lists which constitute part of the Seventh Schedule of the Constitution. It is manifest that the decisions referred to above have no bearing on the question debated in the present case.
23. Industrial Disputes Act therefore is a general law relating to industrial disputes. Rules relating to the Temporary employees in the P & T Department are special provisions applicable, to a particular class. These rules take note of the special features of these categories of Government servants and take care of their tenure and termination. Entry 61 in List-I relates to industrial disputes concerning union employees. There was no such entry in the Government of India Act. It seems thus to be clear that the Union is now armed with a specific entry in List-I to embark on a fresh legislation relating to industrial disputes concerning union employees, a special subject, incidentally implying that the field under Entry 22 List-III is of general application. In fact both the centre and the States have enacted several laws where specific provisions for industrial disputes in particular industries have been made, notwithstanding Act, 14 of 1947. The special rules relating to the temporary Government servants thus exclude the general provision in the Industrial Disputes Act.
24. In the view we have taken, there is no necessity to consider all the other points raised by the counsel for the parties. We shall however briefly take note of some of the decisions cited before us.
25. In Umayammal v. State of Kerala 1983-I L.LJ. 267, a full Bench of this Court had to consider the applicability of the Industrial Disputes Act and temporary Government servants governed by the rules under the Kerala Public Services Act. This Court observed in Para 12.
In this context we may note here the argument advanced by the learned Additional Advocate General, Mr. T.C.N. Menon, in respect of provisional appointees to Government Service, appointed under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules. These rules were originally framed under Article 309 of the Constitution and thereafter they are continued in force by virtue of the provisions contained in the Kerala Public Services Act which again is enacted by the legislature as enabled by Article 309 of the Constitution. Mr. Menon’s argument is that an employee whose conditions of service are regulated by rules framed either under Article 309 of the Constitution or under enactment brought by virtue of the enabling provisions under Article 309 will not be a workman employed in industry to whom the provisions of the Industrial Disputes Act are applicable.
x x x
From the observations of Justice Krishna Iyer and Chief Justice Beg it will not follow that merely because there is a provision in regard to temporary appointees as in Rule 9(a) of the Kerala State and Subordinate Service Rules, such appointment will stand excluded from the purview of the Act. In this connection we might note here Section 25-J of the Act occurring in Chapter V-A. It reads as hereunder:
25J – Effect of laws inconsistent with this Chapter. (1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Employment (standing orders) Act, 1946 (20 of 1946).
Provided that where under the provisions of any other Act or rules, orders or notifications issued thereunder or under any standing orders or under any award, contract of service or otherwise, a workman is entitled to benefits in respect of any’ matter which are more favourable to him than those to which he would be entitled under this Act, the workman shall continue to be entitled to the more favourable benefits in respect of that matter notwithstanding that he receives benefits in respect of other matters under this Act.
(2) For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any state is so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay-off and retrenchment shall be determined in accordance with the provisions of this Chapter.
In spite of Section 25-J it may be possible to exclude the operation of the provisions of Chapter V-A of the Act by a positive provision in any new legislation. However one cannot say that Rule 9 of the KSSR is such a positive provision in any way repealing either expressly or by implication the provision in Chapter V-A of the Act as regards the temporary Government employees who are workmen coming within the ambit of the Act. It could not also be said that there is any inconsistency between the provisions in Chapter V-A of the Act and Rule 9 of the KSSR Because of the time limit fixed for the period of continuance in service of a temporary appointee as per the said rule. Such time limit would certainly apply to a person who will not come within the ambit of the term “workman” as defined in the Act.
26. The Full Bench thus held that it was legally possible to exclude the operation of the provisions of Chapter V-A of the Industrial Disputes Act. But on a construction of Rule 9 of the Kerala State and Subordinate Services Rules, held it was no “positive provision” which excluded the Industrial Disputes Act and it was not inconsistent with the Industrial Disputes Act. The provisions in the Central rules are not similar. Moreover, in this state an ordinance has been promulgated amending the Kerala Public Services Act expressly excluding the Industrial Disputes Act in its application to the State civil services. The validity of the Ordinance has been sustained by a decision in W.A. No.201 of 1983 and connected cases, judgment delivered by one of us (Bhaskaran Ag. C.J.). The relevance of the Full Bench Decision in respect of civil servants has been statutorily minimized.
27, In L Krishnan v. Southern Railway 1972-II L.L.J. 568, a Division Bench of this Court had to consider the applicability of the Industrial Disputes Act of railway employees governed by the railway establishment code. It was held, compliance with Section 25-F of the Industrial Disputes Act was necessary even in those cases for Rule 149(6) of the Railway Code provided thus:
Notwithstanding anything contained in Clauses (1), (2) and (4) of this rule, if a Railway Servant or apprentice is one to whom the provisions of the Industrial Disputes Act 1947 apply he shall be entitled to notice or wages in lieu thereof in accordance with the provisions of the Act.
28. We have also been referred to a decision of M.P. Menon, J. in Bhaskaran v. Sub Divisional Officer 1982-I L.L.J. 248. The learned Judge disposed of the writ petition in respect of persons employed by the P & T Department who were not governed by any rule under Article 309. The question raised in this writ appeal and the points decided did not arise for consideration in that case. We shall guard ourselves by stating that we have considered only the impact of special rules, the Central Civil services (Temporary service) Rules, 1965 on the Industrial Disputes Act and nothing further.
29. We therefore hold that the writ petitioners are not entitled to invoke Section 33(c)(2) of the Industrial Disputes Act, that the Tribunal constituted under the Act has no jurisdiction to consider this claim, that they are governed by Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 and not by Chapter V-A of the Industrial Disputes Act and in reversal of the single Judge’s judgment, allow the appeal and dismiss the original petition; but in the circumstances of the case, no costs.
