Kerala High Court
Santhosh.N.C vs Kerala State Electricity Board Ltd on 24 January, 2020
Author: P.V.Asha
Bench: P.V.Asha
W.P(C).No.6410/2019 & c/cases 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
FRIDAY, THE 24TH DAY OF JANUARY 2020 / 4TH MAGHA, 1941
WP(C).No.6410 OF 2019(A)
PETITIONERS:
1 SANTHOSH.N.C.
AGED 48 YEARS
S/O LATE CHANDRASEKHARAN NAIR, (EMP CODE 1052684)
SUB ENGINEER, 110 KV SUB STATION, KANDANAD
RESIDING AT NADUVILE VEEDU, CHOTTANIKKARA.P.O.
ERNAKULAM-682 312.
2 SHAJU GEORGE JOSEPH,
S/O M.T.GEORGE,(EMP CODE 1047446)
OVERSEER, ELECTRICAL SECTION, ALUVA WEST,
THOTTAKKATTUKARA, RESIDING AT MUNDANCHERY HOUSE,
ERUMATHALA P.O.CHUNGAMVELY, ALUVA-683 112.
3 EMMANUAL ANTONY N.N
S/O VARGHESE N.M, (EMP CODE 1054369)SUB ENGINEER,
ELECTRICAL SECTION, ELOOR, RESIDING AT
NELKUNNASSERY HOUSE, EZHIKKARA P.O.KADAKKARA SOUTH,
NORTH PARAVOOR, PIN 683 513.
4 JEBIN C RAJU,
S/O C.V.RAJU, (EMP CODE 1070122), SUB ENGINEER,
ELECTRICAL SECTION, KUNNAMKULAM BBR, RESIDING AT
CHERUPANAKAL HOUSE, KAKKAD,
KUNNAMKULAM P.O, PIN - 680 503.
5 SARUN S.S,
S/O S.K.SUBRAMANIAN, (EMP CODE 1103742) SUN
ENGINEER, ELECTRICAL DIVISION,
PORINGALKUTHU,RESIDING AT SASTHAMKUDAM HOUSE,
NELLAI P.O., KOLATHUR, THRISSUR 680 305.
BY ADVS.
SRI.P.RAVINDRAN (SR.)
SMT.APARNA RAJAN
SRI.SREEDHAR RAVINDRAN
W.P(C).No.6410/2019 & c/cases 2
RESPONDENTS:
1 KERALA STATE ELECTRICITY BOARD LTD.
REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVAN,
PATTAM, THIRUVANANTHAPURAM-695 004.
2 THE CHIEF ENGINEER (HRM),
KERALA STATE ELECTRICITY BOARD LTD,
VYDHUTHI BHAVAN, PATTAM,
THIRUVANANTHAPURAM-695 004.
3 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
POWER (A) DEPARTMENT, THIRUVANANTHAPURAM-695 001.
4 THE CENTRAL ELECTRICITY AUTHORITY,
SEVA BHAVAN, R.K.PURAM, NEW DELHI 110 066.
5 ADDL R5 : KERALA STATE ELECTRICITY BOARD WORKERS
ASSOCIATION,
(CITU) HAVING ITS REGISTERED OFFICE AT BTR MEMORIAL
MELE THAMPANNUR, THIRUVANANTHAPURAM,
REPRESENTED BY ITS GENERAL SECRETARY.
(IMPLEADED AS PER ORDER DATED 20/03/19
IN IA NO. 1/19)
6 ADDL R6 : THE `KERALA ELECTRICITY WORKERS
FEDERATION',
REG NO. REPRESENTED BY ITS GENERAL SECRETARY.
(IMPLEADED AS PER ORDER DATED 26-06-2019
IN IA NO 2/2019)
R1-2 BY ADV. SRI.C.JOSEPH ANTONY
R1-2 BY SRI.GEORGEKUTTY MATHEW, SC, KSEB
R3 BY GOVERNMENT PLEADER SRI SUNIL KURIAKOSE
R4 BY SRI.M.C.MONY, CGC
R5 BY ADV. SRI.N.KRISHNA PRASAD
R6 BY ADV. SRI.V.VENUGOPALAN NAIR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.01.2020, ALONG WITH WP(C).6723/2019(M), WP(C).6922/2019(M),
THE COURT ON 24.01.2020 DELIVERED THE FOLLOWING:
W.P(C).No.6410/2019 & c/cases 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
FRIDAY, THE 24TH DAY OF JANUARY 2020 / 4TH MAGHA, 1941
WP(C).No.6723 OF 2019(M)
PETITIONERS:
1 MUHAMMED.A.A,
AGED 42 YEARS
S/O ABDUL RAHIM A.M, WORKING AS LINEMAN GRADE I,
ELECTRICAL SECTION, PUNNAMPARAMBU, KERALA STATE
ELECTRICITY BOARD LTD., RESIDING AT AMMANATH,
CHEMBODU, PANANGATTUKARA (P.O), THRISSUR DISTRICT,
PIN-680 623.
2 ABHILASH K.B,
AGED 40 YEARS
S/O. BALAN K.G., WORKING AS LINEMAN GRADE I,
ELECTRICAL SECTION, PAVARATTY,
KERALA STATE ELECTRICITY BOARD LTD.,
RESIDING AT KADAVIL HOUSE, PAMBOOR,
KUTTUR P.O., PIN-680 013.
3 ROBERT P,
AGED 49 YEARS
S/O. PONNAYYAN, WORKING AS OVERSEER,
ELECTRICAL SECTION, PALODE,
KERALA STATE ELECTRICITY BOARD LTD.,
RESIDING AT THADATHARIKATH VEEDU, KARIMKADA,
CHULLIMANOOR P.O., NEDUMANGAD,
THIRUVANANTHAPURAM, PIN-695 541.
BY ADV. SRI.T.T.RAKESH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, DEPARTMENT OF POWER, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 KERALA STATE ELECTRICITY BOARD LIMITED
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR
OR/AND SECRETARY, KERALA STATE ELECTRICITY BOARD
LTD., VAIDHYUTHI BHAVAN, PATTAM,
THIRUVANANTHAPURAM-695 004.
W.P(C).No.6410/2019 & c/cases 4
3 THE CENTRAL ELECTRICITY AUTHORITY
SEVA BHAVAN, R.K.PURAM, NEW DELHI-110 066.
4 GENERAL SECRETARY,
UNITED DEMOCRATIC ELECTRICITY EMPLOYEES FRONT,
REGISTRATION NO.01-1/2003,
V.P.MARAKKAR SMARAKA MANDIRAM,
AMBUJAVILASOM ROAD,
CORPORATION OF THIRUVANANTHAPURAM,
THIRUVANANTHAPURAM.
(IMPLEADED AS PER ORDER DATED 09.01.2020
IN I.A.NO.3/2019)
R1 BY GOVERNMENT PLEADER SRI SUNIL KUMAR KURIAKOSE
R1-2 BY ADV. SRI.C.JOSEPH ANTONY
R2 BY SRI.M.K.THANKAPPAN, SC, KERALA STATE
ELECTRICITY BOARD LIMITED
R3 BY SRI.KRISHNADAS P.NAIR, CGC
R4 BY ADV. G.S.REGHUNATH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.01.2020, ALONG WITH WP(C).6410/2019(A), WP(C).6922/2019(M),
THE COURT ON 24.01.2020 DELIVERED THE FOLLOWING:
W.P(C).No.6410/2019 & c/cases 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
FRIDAY, THE 24TH DAY OF JANUARY 2020 / 4TH MAGHA, 1941
WP(C).No.6922 OF 2019(M)
PETITIONERS:
1 GIREESH PRABHA R.P.
AGED 42 YEARS
LINEMAN GR.1, ELECTRICAL SECTION - MALEYINKEEZHU,
THIRUVANANTHAPURAM-695571.
2 BHUVANEDRAN A
LINEMAN GR.1, ELECTRICAL SECTION - CHIRAYINKEEZHU,
THIRUVANANTHAPURAM-695304.
3 RAJENDRAN P.R.
LINEMAN GR.1, ELECTRICAL SECTION - KARIMANOOR,
IDUKKI DISTRICT-685581.
BY ADVS.
SRI.K.B.GANGESH
SMT.SMITHA CHATHANARAMBATH
SMT.ATHIRA A.MENON
RESPONDENTS:
1 STATE OF KERALA,
REP. BY THE SECRETARY TO DEPARTMENT OF POWER,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 KERALA STATE ELECTRICITY BOARD LTD.,
REP.BY ITS SECRETARY, KERALA STATE ELECTRICITY
BOARD LTD., VAIDYUTHI BHAVAN, PATTOM,
THIRUVANANTHAPURAM-695004.
3 THE CHIEF ENGINEER (HRM),
KERALA STATE ELECTRICITY BOARD LTD.,
VAIDHYUTHI BHAVAN, PATTOM,
THIRUVANANTHAPURAM-695004.
W.P(C).No.6410/2019 & c/cases 6
4 THE CENTRAL ELECTRICITY AUTHORITY,
SEVA BHAVAN, P.K.PURAM, NEW DELHI-110066.
R2-3 BY ADV. SRI.M.K.THANKAPPAN
R4 BY SRI.JAISHANKAR V.NAIR, CGC
R1 BY GOVERNMENT PLEADER SRI SUNIL KUMAR KURIAKOSE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.01.2020, ALONG WITH WP(C).6410/2019(A), WP(C).6723/2019(M),
THE COURT ON 24.01.2020 DELIVERED THE FOLLOWING:
W.P(C).No.6410/2019 & c/cases 7
"CR"
P.V.ASHA, J.
--------------------------
W.P(C) Nos.6410 of 2019-A,
6723 of 2019-M and
W.P(c).No.6922 of 2019-M
-------------------------------------------
Dated this the 24th day of January, 2020
JUDGMENT
Order issued by the Government (produced as Ext.P4 in W.P.(C). 6410 of 2019) exempting the existing employees of Kerala State Electricity Board Ltd. from the qualifications prescribed in Regulations 6 and 7 of the Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010 (hereinafter referred to as `Regulations' for short), purportedly under Regulation 116 of the Regulations is under challenge in these Writ Petitions filed by Sub Engineers/Overseers/Linemen. As the issue involved is common, all these Writ Petitions are disposed of by this common judgment. The parties and documents referred to in this judgment are as described in W.P.(C) No.6410/2019 unless specified otherwise.
2. English translation of the operative portion of Ext.P4 order is the following:
"Government examined the same, taking note of the importance of the Regulations, the right of the employees to enjoy the service benefits and promotional avenues based on long term settlements and found that any alteration of the service conditions would adversely affect the efficiency and smooth functioning of the KSEBL. The experience gained W.P(C).No.6410/2019 & c/cases 8 in the electricity wing is sufficient to perform the duties attached to each post effectively. Considering the above aspects, Government, in exercise of its powers under Regulation 116 of the Regulations 2010, hereby orders that the promotion of the existing employees would continue to be governed by the existing provisions, effecting deviation, in relaxation of Regulations 6 and 7."
The contention of the petitioners is that the Government does not have any authority to issue such an order. They are also challenging Regulation 116 to the extent it permits the State Government/Central Government to issue orders deviating from the provisions contained in the Regulations. According to them, the said provision is ultravires the provisions contained in the Electricity Act, 2003, as the same does not contain any provisions enabling the Central Electricity Authority to frame a regulation permitting the Governments to grant exemptions. The Central Electricity Authority is not empowered to delegate its functions to the Government in the absence of any enabling provisions. The petitioners point out that the reason for issuing Ext.P4 order is a representation received from a trade union, as evident from Ext.P5. It is pointed out that the authority is framing regulations after consultation with all stake holders.
3. Respondents 1 and 2 have filed a counter affidavit supporting Ext.P4 order passed by the Government. It is stated that all the functions, assets, liabilities, rights and obligations of the erstwhile Kerala State Electricity Board were vested in the State Government as per notification dated 25.09.2008 of the State Government, in exercise of its powers under Section 131 of the Act. Thereafter, all those were revested in the Kerala State Electricity Board Limited, as W.P(C).No.6410/2019 & c/cases 9 a Public Limited Company, based on Second Transfer Scheme (revesting) 2013 as per Ext.R2(a) scheme dated 31.10.2013 and KSEBL started its operations on 01.11.2013. According to them, the provisions in Regulations 6(3) and 7 (3) providing for training to be given to the existing employees is consistent with Section 133(2) of the Act and the Regulations can only be subservient to the Act. It is also stated that the Central or State Government can allow deviations in matters referred in the regulations. It is stated that in the light of Sections 53 and 177(2)(b), the Authority has to consult the State Government while specifying measures relating to safety and electrical supply. It is stated that Ext.R2(b) tripartite agreement was executed between the KSEBL, its employees and the Government of Kerala on 01.08.2014 in accordance with clause 6(8) of Ext.R2(a) scheme; as per clause 2(c) of that agreement, the terms and conditions of services of existing employees such as promotions, transfers, wages, compensations, leave, allowances, etc. upon transfer to KSEBL shall continue to be regulated by existing regulations/service rules in vogue and is guaranteed to continue. Under Clause 2(n), it is also agreed that all the existing agreements/settlements and liabilities of KSEB and the Board shall be honoured by KSEBL. Therefore, it is stated that in the light of Section 133(2) of the Act, there cannot be any condition less favourable to the employees of the erstwhile Board and none of the service benefits of the existing employees could be curtailed. It is also stated that the long term settlements entered into between the Trade Unions and the KSEB are binding under Section 18 of the ID Act. It is stated that the Government of Kerala had on W.P(C).No.6410/2019 & c/cases 10 26.10.2016 issued orders under Regulation 116, granting six months' time for implementing the provisions under the Regulations. It is stated that the provisions under the Regulations for giving training to existing employees are to be viewed in the light of the protection provided to the existing employees under Section 133. According to them, the KSEBL had taken steps in compliance with the provisions under the Regulations and a separate safety wing is already operating; a committee was constituted on 18.10.2016 to chalk out a time lined schedule of activities such as training, change in recruitment rule, etc. and its report is under consideration. It is also stated that the training policy formulated based on directions of the Central Government was already in force from 2017-18. It is also stated that a programme for imparting training to existing employees is already chalked out in tune with the Regulations. Steps are also taken for deployment of manpower and restructuring; Indian Institute of Management was entrusted to conduct a study on enhancing service quality and organisational effectiveness; the report is examined by a sub committee. It is stated that the Minister for Electricity convened a meeting of the trade unions on 19.12.2018, in view of the discontentment among employees on implementation of the Regulations, pointing out the protections available to existing employees. Based on the decision in that meeting, the Government was requested to exempt the employees from the Regulations 6 and 7. Thereupon, the Government granted exemption as per Ext.P4 order. It is stated that the decision in Ext.P4 is a policy decision granting protection to the existing employees.
4. The 4th respondent has filed a counter affidavit stating that the W.P(C).No.6410/2019 & c/cases 11 Authority has framed the Regulations in exercise of its powers under Section 177(2) read with Section 53 of the Act to ensure safety of human beings, animals and property from electrical installations associated with generation, transformation, transmission, conversion, distribution or use of electricity. It is stated that the regulations were framed in consultation with stakeholders including State Government. According to it, all the Regulations including 116 are framed in exercise of its powers.
5. The State Government also has filed a counter affidavit supporting the order Ext.P4. It is stated that in view of Regulation 116, it is the prerogative of the State Government to issue Ext.P4 order deviating from some of the provisions of the Regulations. It is also stated that Ext.P4 is a policy decision of the Government. It is their contention that Regulations 6(3) and 7(3) relate to the existing employees and the training required for them. According to them, in view of clause 2(c), (f), (g) and (n) of the tripartite agreement, the Government is bound to protect the existing employees from the issues of their promotions, allowances, etc. under Section 133(2) also. The appointments made after the date of Ext.P4 order and their promotions would be subject to the qualifications prescribed in the Regulations. The policy decision in Ext.P4 was taken in the larger public interest.
6. Heard Sri P.Ravindran, the learned Senior Counsel in W.P. (C).No.6410 of 2019, M/s. Prasanth, Rakesh and Gangesh, learned Counsel for the petitioners, Sri P.Raju Joseph, the learned Senior Counsel for the Electricity Board Ltd. and Sri. M.C.Mony, the learned Counsel for the Central Electricity Authority. W.P(C).No.6410/2019 & c/cases 12
7. According to the petitioners, the provision which enables the Authority to frame Regulations is Section 177 and Regulations relating to safety measures are framed under Section 177 (2) (b) read with Section 53(a) of the Electricity Act, 2003 ('the Act' for short). Neither of these provisions enable the Central Electricity Authority to delegate its powers to the State Government nor enable the State Government to exempt any institution from the operation of the Regulations or to grant exemptions from the provisions. Under Section 53, it is in consultation with the State Government that the Authority has to specify suitable measures for protection of public and safety of the persons engaged. The Central Electricity Authority ('the authority' for short) is constituted under Section 70 of the Act. Under Section 70, the authority is to exercise 'such functions' and perform 'such duties' as are assigned to it under the Act. Section 73 provides that the authority shall perform such functions and duties as the Central Government may prescribe or direct, and in particular the matters specified in clause (a) to (o) of that Section. Under Section 73 (c), the authority is to specify the safety requirements for construction, operation and maintenance of electrical plants and electrical lines. It is their further contention that Section 133 does not in any way stand in the implementation of Sections 6 and 7 of the Regulations. It is also pointed out that if at all there was any difficulty in the implementation of the provisions in the Act, it was for the Central Government to take action under Section 183, that too, before the expiry of 2 years of the commencement of the Act and no such action was taken.
W.P(C).No.6410/2019 & c/cases 13
8. The learned Senior Counsel for the petitioners relied on the judgments in Distt. Collector, Chittoor v. Chittoor Distt. Groundnut Traders Assn. [(1989) 2 SCC 58], Kunj Behari Lal Butail v. State of H.P [(2000) 3 SCC 40 para.18], M.Chandru v. Chennai Metropolitan Development Authority [(2009 )4 SCC 72] and Petroleum and Natural Gas Regulatory Board v. Indraprastha Gas Limited [(2015) 9 SCC 209] and argued that a delegatee cannot subdelegate and the provisions contained in Regulation 116 are therefore ultravires the provisions of the Act.
9. The contention of the learned Senior Counsel for the Kerala Electricity Board is that Section 177 which enables the authority to make the Regulation specifically provides that such regulation should be consistent with the provisions of the Act and therefore the Regulations have to be construed taking note of other provisions of the Act also. Pointing out Section 131 based on which the Electricity Board was converted as a Public Ltd. Company - KSEBL and the vesting of its entire assets and liabilities in the State and the provisions in Section 133, it was argued that the Government as well as the KSEBL are bound by the provisions contained in Ext.R2(a) scheme formulated under Section 133 and the tripartite agreement Ext.R2(b) entered into between the Government and the KSEBL and the employees' unions. It is pointed out that as per this scheme as well as tripartite agreement r/w Section 131, there cannot be any condition less favourable to the employees as on the date of vesting. Apart from the same, the KSEBL is bound by the provisions in the long term settlements entered into W.P(C).No.6410/2019 & c/cases 14 between the KSEB and its employees' unions. Under Section 18 of the ID Act, the KSEBL is bound to abide by the provisions therein. The provisions regarding promotions, appointment etc. in the KSEB are governed by the provisions contained by the long term settlement. It is his contention that the settlement arrived at is having sanctity over and above the provisions in the statute. Relying on the judgment L.I.C v. D.J. Bahadur :(1981) 1 SCC 315 it was argued that the provisions in the ID Act will prevail over the Electricity Act to the extent it relates to the service conditions. It is also his contention that in the event of a conflict being found between the provisions contained in the Electricity Act and the provisions in the ID Act, the provisions in the I.D. Act will prevail, especially when the power of the Electricity Authority is subject to other provisions contained in Sections 131, 133 etc. It is his further contention that even in the absence of a provision like Regulation 116, the Government is competent to issue orders to protect the employees as KSEBL is a Company fully owned by the Government. Therefore, it is argued that Regulations 6 and 7 have to be read along with other provisions. Pointing out the sub regulation 3 to Regulations 6 and 7 it was argued that those provisions in the Regulations also safeguard the existing employees even while fixing higher qualifications. It was further argued that existing benefits as well as vested rights of the employees cannot be taken away by way of the regulation as there is no retrospective effect. The judgment in State of Madhya Pradesh & Ors. v. Yogendra Shrivastava [(2010) 12 SCC 538] was relied on. He has also got a contention that none of the provisions in the Electricity Act W.P(C).No.6410/2019 & c/cases 15 including Sections 53 and 177 enable the Central Electricity Authority to fix the qualifications or the conditions of service of the employees in the Electricity Board. Sections 53 or 73 also do not enable it to fix the qualifications. Referring to the preamble also, it was argued that the Electricity Act is not enacted to provide service conditions of the employees. According to him, even the Regulations 6 and 7 are not covered by any of the provisions in the Act. Therefore, it is his contention that all these Regulations had to be read with the intent and object behind Section 177 and all other provisions in the Electricity Act, especially Section 133.
10. According to the learned Government Pleader, Ext.P4 order is a policy decision in the light of Exts.R2(a) and R2(b) schemes which provide for protection of the existing employees. Referring to Section 133 (2) and clause 6 of the Ext.R2(a) Scheme, Sri Prasanth argued that there is no provisions in this scheme which provide for the promotion or that the existing employees have to be governed by the agreement or rules prior to that and Section 133 only provides that it shall be in accordance with the scheme. It is also pointed out that even though clause 2(c) of Ext.R2(b) refers to promotion, there is no reference to promotion in Ext.R2(a) scheme. He relied on the judgments in The Patiala C.C.Bank Ltd. v. The Patiala C.C.Bank Emp. Union [JT 1996 (11) S.C 202], Partner, Malabar Wires and Allied Products v. Deputy Labour Commissioner [ILR 1997 (2) Ker. 422], Sankara Narayanan v. Gopinathan [2008 (4) KHC 281 (DB)], State of Kerala v. Anitha Thomas [2016 (3) KLT 151] etc. and argued that the Board W.P(C).No.6410/2019 & c/cases 16 cannot fix any qualification lesser than that fixed by the Central Authority.
11. Having heard the arguments advanced by the learned Senior Counsel on both sides and other learned Counsel appearing for the parties, the learned Government Pleader and the learned Counsel for the Authority, it is found necessary to examine the provisions contained in the Act as well as the Regulations. The issue is relating to implementation of Regulations 6 and 7 of the Regulations and the power of the State Government under Regulation 116.
Regulations 6 ad 7 of the Regulations read as follows:
"6. Safety measures for operation and maintenance of electric plants:-
(1) Engineers and supervisors appointed to operate or under take maintenance of any part or whole of a thermal power generating station and a hydro power plant together with the associated substation shall hold diploma in Engineering from a recognized institute, or a degree in Engineering from a university.
(2) The Technicians to assist engineers or supervisors shall possess a certificate in appropriate trade, preferably with a two years course from a Industrial Training Institute recognized by the Central Government or the State Government.
(3) Engineers, supervisors and Technicians engaged for operation and maintenance of electric plants should have successfully undergone the type of training as specified in Schedule-I provided that the existing employees shall have to undergo the training mentioned in sub-
regulation (3) within three years from the date of coming into force of these regulations.
(4) The owner of every thermal power generating station and hydro power plant together with their associated substation shall arrange for training of personnel engaged in the operation and maintenance of his generating station along with associated sub-station in his own institute or any other institute recognized by the Central Government or the State Government provided that separate training shall be given to the persons engaged in W.P(C).No.6410/2019 & c/cases 17 operation and maintenance of thermal power stations and hydro power stations including associated sub-stations.
7. Safety measures for operation and maintenance of transmission, distribution systems:- (1) Engineers or supervisors engaged in operation and maintenance of transmission and distribution systems shall hold diploma in electrical, mechanical, electronics and instrumentation engineering from a recognized institute or university.
(2) The Technicians to assist engineers or supervisors shall possess a certificate in appropriate trade, preferably with a two years course from a Industrial Training Institute recognized by the Central Government or State Government.
(3) Engineers, supervisors and Technicians engaged for operation and maintenance of transmission and distribution systems electric plants should have successfully undergone the type of training as specified in Schedule-II.
Provided that the existing employees shall have to undergo the training mentioned in sub-regulation (3) within three years from the date of coming into force of these regulations.
(4) Owner of every transmission or distribution system shall arrange for training of their personal engaged in the operation and maintenance of transmission and distribution system in his own institute or any other institute recognized by the Central Government or State Government." Thus the Authority has prescribed the minimum technical qualifications to be possessed by an employee involved in distribution of electricity as well as those involved in generation and transmission of electricity. These regulations are stated to have been issued after consultation with State Government and all other stake holders. Regulation 116 reads as follows:
"116. Deviations:- (1) The Central Government or the State Government, as the case may be, by order in writing, allow deviations in respect of matters referred in these regulations except regulation 30.W.P(C).No.6410/2019 & c/cases 18
(2) The Electrical Inspector or the inspector of mines may, by order in writing, allow deviations in respect of matters referred in regulations 12 to 17, 28, 35(2)(3) and (5), 36(3), 37(1) to (iv), 41(xii), 43, 44(2), 46, 52 to 54, 57 to 61, 65, 72, 74, 78 to 91, 102, 107(6), (8) and (1) and
114.
Explanation:- Every order allowing the deviations by the Electrical Inspector or the Inspector of Mines under sub-regulation (2) shall be placed before the Central or State Government which may disallow or revise such deviations."
Thus the power conferred on the State Government is to allow deviation in respect of matters referred in the Regulations. What is granted in Ext.P4 is exemption from application of Regulations 6 and 7 to the employees working in KSEBL as on 13.02.2019 - the date of Ext.P4 order. In this context, the meaning of deviation is relevant. In Legal-English Dictionary the meaning given is: the action of deviating; to do something that is different from the normal, usual or agreed way; a difference from what is usual or acceptable. In Webster's Dictionary, the meaning of deviation is : departure from an established ideology or party line; noticeable or marked departure from accepted norms of behavior. In Ext.P4, the Government has exempted all the employees who were in service on 13.02.2019 from having the qualifications prescribed in Regulations 6 and 7. It does not even direct to undergo any training to the existing employees. It is pertinent to note that the Regulations came into force in 2010. The fact that a complete exemption is given even to the employees who joined after the effectuation of the Regulations evidences the total non-application of mind of Government over the matter. Moreover, deviation permitted in Regulation 116 cannot be treated as exemption. W.P(C).No.6410/2019 & c/cases 19 Therefore, Ext.P4 order cannot be said to be an order issued under Regulation 116 as it is in excess of the powers conferred on the Government under Regulation
116.
12. Regarding the contention that Regulation 116 itself is ultravires the provisions of the Act, it is necessary to examine the provisions contained in Sections 53(a), 70, 73, 177, 131, and 133 of the Act which read as follows:
"53. Provisions relating to safety and electricity supply:- The Authority may, in consultation with the State Government, specify suitable measures for--
(a) protecting the public (including the persons engaged in the generation, transmission or distribution or trading) from dangers arising from the generation, transmission or distribution or trading of electricity, or use of electricity supplied or installation, maintenance or use of any electric line or electrical plant;
xxxx xxxx xxx"
"70. Constitution, etc., of Central Electricity Authority:-- (1) There shall be a body to be called the Central Electricity Authority to exercise such functions and perform such duties as are assigned to it under this Act.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
73. Functions and duties of Authority.--The Authority shall perform such functions and duties as the Central Government may prescribe or direct, and in particular to--
(a) advise the Central Government on the matters relating to the national electricity policy, formulate short-term and perspective plans for development of the electricity system and co-ordinate the activities of the planning agencies for the optimal utilisation of resources to subserve the interests of the national economy and to provide reliable and affordable electricity for all consumers;
(b) specify the technical standards for construction of electrical plants, electric lines and connectivity to the grid;
(c) specify the safety requirements for construction, operation and maintenance of electrical plants and electric lines;
(d) specify the Grid Standards for operation and maintenance of transmission lines;
(e) specify the conditions for installation of meters for transmission and supply of electricity;
(f) promote and assist in the timely completion of schemes and projects for improving and augmenting the electricity system;
(g) promote measures for advancing the skill of persons engaged in the electricity industry;
(h) advise the Central Government on any matter on which its advice is W.P(C).No.6410/2019 & c/cases 20 sought or make recommendation to that Government on any matter if, in the opinion of the Authority, the recommendation would help in improving the generation, transmission, trading, distribution and utilisation of electricity;
(i) collect and record the data concerning the generation, transmission, trading, distribution and utilisation of electricity and carry out studies relating to cost, efficiency, competitiveness and such like matters; (j) make public from time to time the information secured under this Act, and provide for the publication of reports and investigations;
(k) promote research in matters affecting the generation, transmission, distribution and trading of electricity;
(l) carry out, or cause to be carried out, any investigation for the purposes of generating or transmitting or distributing electricity;
(m) advise any State Government, licensees or the generating companies on such matters which shall enable them to operate and maintain the electricity system under their ownership or control in an improved manner and where necessary, in co-ordination with any other Government, licensee or the generating company owning or having the control of another electricity system;
(n) advise the Appropriate Government and the Appropriate Commission on all technical matters relating to generation, transmission and distribution of electricity; and
(o) discharge such other functions as may be provided under this Act."
The functions and duties of the Authority are therefore those prescribed and directed by the Central Government. Those functions include advising the Central Government on matters relating to national policy, advising State Government on specifying the technical standards for construction of electrical plants, electric lines and connectivity to the grid; specifying the safety requirements for construction, operation and maintenance of electrical plants and electric line, etc., advising the State Government to enable them to operate and maintain electricity system in an improved manner matters; advising appropriate Government on all technical matters relating to generation, transmission and distribution of electricity. None of these provisions indicate that the Authority can delegate any matter to State Government. Under Section 53(a) it is for the Authority to specify suitable measures, in consultation with the State Government, for matters including W.P(C).No.6410/2019 & c/cases 21 protection of public, including the persons engaged in the generation, transmission or distribution or trading from dangers arising from the generation, transmission or distribution or trading of electricity, or use of electricity supplied or installation, maintenance or use of any electric line or electrical plant. Such measures are to be specified under Regulation 177. Therefore, the provisions in the Act permit only a consultation with the State Government for specifying the measures. If at all any deviation was to be made, it would have been permissible only by the authority, that too, when there is a provision for the same. When the duties and functions under the Act are to be performed by the Authority, it cannot in the absence of any provision under the Act delegate the same. There is no provision which enables the Authority to exempt anybody from the operation of any regulations. That being so, such a non-existent power cannot be delegated to the State Government. Therefore, I am of the view that the Authority does not have the authority to confer any power on the State Government to deviate from the provisions of the Regulations.
13. The power to make regulation conferred under Rule 177 is subject to other provisions in the Act and such Regulations shall be to carry out the provisions of the Act. It is necessary to examine whether other provisions in the Act restrict the operation of Regulations 6 and 7 which provide for the qualification of the employees involved in the generation, distribution and maintenance section. As much reliance was placed on the scheme Ext.R1(a) formulated under Section 31 and the tripartite agreement, it is necessary to W.P(C).No.6410/2019 & c/cases 22 examine the provisions in Sections 131, 133 and the scheme and agreement. Relevant portions of Sections 131 and 133 read as follows.
131:- Vesting of property of Board in State Government:-- (1) With effect from the date on which a transfer scheme, prepared by the State Government to give effect to the objects and purposes of this Act, is published or such further date as may be stipulated by the State Government (hereafter in this Part referred to as the effective date), any property, interest in property, rights and liabilities which immediately before the effective date belonged to the State Electricity Board (hereinafter referred to as the Board) shall vest in the State Government on such terms as may be agreed between the State Government and the Board.
(2) Any property, interest in property, rights and liabilities vested in the State Government under sub-section (1) shall be re-vested by the State Government in a Government company or in a company or companies, in accordance with the transfer scheme so published along with such other property, interest in property, rights and liabilities of the State Government as may be stipulated in such scheme, on such terms and conditions as may be agreed between the State Government and such company or companies being State Transmission Utility or generating company or transmission licensee or distribution licensee, as the case may be:
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx
133. Provisions relating to officers and employees:-- (1) The State Government may, by a transfer scheme, provide for the transfer of the officers and employees to the transferee on the vesting of properties, rights and liabilities in such transferee as provided under section 131.
(2) Upon such transfer under the transfer scheme, the personnel shall hold office or service under the transferee on such terms and conditions as may be determined in accordance with the transfer scheme:
Provided that such terms and conditions on the transfer shall not in any way be less favourable than those which would have been applicable to them if there had been no such transfer under the transfer scheme:
Provided further that the transfer can be provisional for a stipulated period. Explanation:-- For the purposes of this section and the transfer scheme, the expression "officers and employees" shall mean all officers and employees who on the date specified in the scheme are the officers and employees of the Board or transferor, as the case may be."
For the formation of the Public Limited Company, there was a vesting of KSEB in Government and a revesting by it in the Company KSEBL of the entire assets and liabilities including the staff, for which there shall be a scheme. Apart from that there shall be transfer scheme under Section 133, for the employees and officers and the personnel shall hold office or service under the transferee. The terms and W.P(C).No.6410/2019 & c/cases 23 conditions of their service under the company can be provided in the transfer scheme. It further provides that the terms and conditions under the Company shall not be less favourable to them. Therefore, it is to be considered whether it is not possible to amend the recruitment rules or orders governing appointment, promotion, etc., to the method of appointment, ratio, or qualification, etc. or in other words, should the employees who were in service as on the date of transfer or transfer scheme continue to be governed by the very same rules/ executive orders/settlement applicable as on the date of the scheme, till their retirement.
14. Section 133 of the Act along with its proviso only provides that there should be a transfer scheme based on which all the employees would stand transferred to the newly formed company and that their service conditions shall not be less favourable than what would have been applicable to them had they continued in the Board. The intent and object behind that provision cannot be construed in such a manner insisting that there shall not be any variation in the rules relating to appointments and the qualifications cannot be amended. That can only mean that the existing employees can continue in the respective posts. At the same time, in case any additional qualification is found essential, they shall be required to acquire such qualifications. At any rate, an interpretation which would in any manner discard the requirement of requisite qualifications fixed by the authority to man the respective posts and which will affect the safety of the public and the entire system would only defeat the very purpose behind the very constitution of the authority.
W.P(C).No.6410/2019 & c/cases 24
15. In this context, it is also pertinent to note that the Regulations 2010 are framed under Section 177(2)(b) read with Section 53 of the Act. The regulations are to be framed consistent with the Act and to carry out the provisions of the Act. The preamble of the Act and Section 177, which are relevant in this context reads as follows:
"An Act to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry, promoting competition therein, protecting interest of consumers and supply of electricity to all areas, rationalisation of electricity tariff, ensuring transparent policies regarding subsidies, promotion of efficient and environmentally benign policies, constitution of Central Electricity Authority, Regulatory Commissions and establishment of Appellate Tribunal and for matters connected therewith or incidental thereto.
177. Powers of Authority to make regulations:-- (1) The Authority may, by notification, make regulations consistent with this Act and the rules generally to carry out the provisions of this Act.
2) In particular and without prejudice to the generality of the power conferred in sub-section (1), such regulations may provide for all or any of the following matters, namely:--
(a) the Grid Standards under Section 34;
(b) suitable measures relating to safety and electric supply under Section 53;
(c) the installation and operation of meters under Section 55;
(d) the rules of procedure for transaction of business under sub-section (9) of Section 70;
(e) the technical standards for construction of electrical plants and electric lines and connectivity to the grid under clause (b) of Section 73;
(f) the form and manner in which and the time at which the State Government and licensees shall furnish statistics, returns or other information under Section 74;
(g) any other matter which is to be, or may be, specified.
(3) All regulations made by the Authority under this Act shall be subject to the conditions of previous publication."
From the above provisions, it is clear that the Authority is constituted under Section 70 to exercise such functions and perform such duties as are assigned to it W.P(C).No.6410/2019 & c/cases 25 under the Act. Even under Section 53, a consultation alone with the State Government is provided for the authority to specify measures for protecting the public including those engaged in the generation, transmission or distribution or trading from dangers arising from the generation, transmission or distribution or trading of electricity, or use of electricity supplied or installation, maintenance or use of any electric line or electrical plant. Such measures even with consultation with the State Government shall be by way of regulations framed under Section 177 and such regulations are to be published in the gazette. As per Section 177(2)
(b), the power conferred is on the authority to make regulations relating to the safety and electric supply under Section 53. The duties and functions of the Authority are only such of them which are assigned to it under the Act.
16. In this context, it is also relevant to note the judgment in Chittoor District Groundnut Traders' case (supra) [(1989) 2 SCC 58], where the issue was relating to a circular issued by the State of Andhra Pradesh. A restriction was imposed on the traders and millers that for transport and export of groundnut seeds and oil outside the State they shall deliver oil to the State Government at a fixed price proportionate to the exported oil. The High Court held that the circular was violative of the provisions contained in the Essential Commodities Act and that the same was beyond the power of the State Government under clause 12 of the Andhra Pradesh Scheduled Commodities Dealers (Licensing and Distribution) Order, 1982. The 1982 order was issued by the State Government in exercise of its powers conferred by Section 3 of Essential Commodities Act as delegated to it by W.P(C).No.6410/2019 & c/cases 26 the Central Government and after obtaining prior concurrence of the Central Government. The 1982 order did not contain any provision restricting the export or transport of groundnut oil seeds or oil outside the State or any provision fixing the price of the same or for imposing compulsory levy. It was held that the power of the State Government was confined only to the matters permitted in the notification issued by the Central Government under Section 3 of the Essential Commodities Act and that anything beyond that was in excess of the powers delegated to it.
17. In Kunj Behari Lal Butail (supra), the Proviso to Rule 3 of H.P. Ceiling on Land Holdings Rules, 1973 framed by the State Government prohibiting transfer of the land, treated as subservient to tea plantation was found to be ultravires of the Act as there is no provision in the Act which prohibits such transfer. The tea plantations were exempted from the applicability of the provisions of the Act. It was held that when the rule making power conferred on the Government under Section 26 of the H.P. Ceiling on Land Holdings Act, 1972 is a general power for carrying out the purposes of this Act without laying down any guidelines, what has been excluded in the Act, cannot be permitted to bring in, in exercise of delegated power to legislate. In the present case, though the Government has passed orders even beyond what the Regulation permitted, when the regulation itself cannot be framed in such a manner delegating another body to regulate.
W.P(C).No.6410/2019 & c/cases 27
18. In the judgment in M. Chandru v. Chennai Metropolitan Development Authority: (2009) 4 SCC 72 , the collection of infrastructure development charges by the Chennai Metropolitan Development Authority (CMDA) for issuing permit for construction of a multi-storeyed building was the question for consideration. The collection was made on behalf of the Chennai Metropolitan Water Supply and Sewerage Board. The builders/developers challenged it alleging that the Board does not have any authority to delegate the same and that the CMDA did not have any power to collect the same. Section 9E of the Tamil Nadu Town and Country Planning Act, 1971 (the 1971 Act), which starts with a non-obstante clause provided that, CMDA shall fully consult and collaborate with the Chennai Metropolitan Water Supply and Sewerage Board constituted under the Chennai Metropolitan Water Supply and Sewerage Act, 1978 with respect to any provision regarding water supply or sewerage services and matters connected therewith that may be included in any development plan prepared or to be prepared under this Act for the Chennai Metropolitan Planning Area or any part thereof. It further provided that any matter involving execution of any work under such plan relating to water supply or sewerage service or matters connected therewith shall be entrusted to and would be the sole responsibility of the Chennai Metropolitan Water Supply and Sewerage Board. Collection of infrastructure development charges from the applicant builder or developer of such multi-storeyed building or special buildings for the provision of adequate water supply or sewerage is one of the powers conferred on the Board under Section W.P(C).No.6410/2019 & c/cases 28 6(xxiiA) of the Act. Regulation 4 of the Chennai Metropolitan Water Supply and Sewerage Infrastructure Development Charges (Levy and Collection) Regulations, 1998 provided that the IDC shall be charged through the CMDA. It was found that the Sewerage Board is a creature of a statute; power to delegate, thus, being a statutory requirement must find its place in the principal Act itself and not in the Regulations. No provision is seen in the Electricity Act which permits the Authority to delegate its functions.
19. In Petroleum and Natural Gas Regulatory Board v. Indraprastha Gas Ltd: (2015) 9 SCC 209 , the challenge was against the judgment of the Delhi High Court which held that the provisions of the Petroleum and Natural Gas Regulatory Board (Determination of Network Tariff for City or Local Natural Gas Distribution Networks and Compression Charge for CNG) Regulations, 2008 to the extent it could be construed to empower the Board to fix the tariff were unsustainable and quashed the order dated 9-4-2012 to the extent it fixed the maximum retail price or required the entities to disclose the entire tariff and the compression charges to its consumers, as it is not in consonance with the Petroleum and Natural Gas Regulatory Board Act, 2006. It was found that the PNGR Board is not empowered to regulate the maximum retail price at which gas is to be sold by entities like respondents to the consumers or to fix any component of network tariff or compression charge for an entity having its own distribution network. Section 22 of the Act empowered the Board to frame regulations subject to the provisions of the Act, on matters mentioned there. Similarly, the 2003 Act W.P(C).No.6410/2019 & c/cases 29 does not permit the Authority to delegate any of its function to the State Government.
20. The next question to be considered is the effect of the tripartite and bipartite settlements over the regulations framed under the Act i.e, whether the provisions contained in clauses 2(c), (f), (g) and (n) of the tripartite agreement and the provisions relating to appointment, promotion, ratio, qualification etc. would prevail over the regulations, as alleged by Sri Raju Joseph. In this context, the following provisions in clause (2) of Ext.R2(b) scheme are relevant:
"(2) The State Government and the KSEB Ltd. Hereby guarantee that:-
(a) There will be no retrenchment of employees for any reason and their status/service will be protected.
(b) All the existing permanent employees including Part Time Contingent Employees will be absorbed to KSEBLtd.
(c) The terms and conditions of services of the existing employees such as promotions, transfers, wages, compensations, leave, allowances etc. upon transfer to KSEB Ltd. shall continue to be regulated by existing regulations/service rules in vogue and is guaranteed to continue as indicated hereunder.
(d) With regard to wage/pay revision, the present system of periodic bipartite negotiations and agreements shall continue.
xxxx xxxx xxxx xxxx xxxx xxxx
(g) All benefits of the services rendered by the existing employees in Board/KSEB as on the date of re-vesting shall be protected and be given full effect.
xxxx xxxx xxxx xxxx xxxx
(n) All the existing agreements/settlements and liabilities of KSEB and Board shall be honoured by the KSEB Ltd.
xxxx xxxx xxxx xxxx xxxx
(s) All the existing workload norms will be continued and changes from time to time will be finalized through mutually negotiated settlements.
(t) All the appointments now being done through the Kerala Public Service Commission in accordance with the provisions of the Kerala Public Service Commission (Additional Functions) Act, 1963 will continue as such and amendments in this respect, if necessary, will be notified by the Government.W.P(C).No.6410/2019 & c/cases 30
(u) The State Government shall ensure that KSEB Ltd. Fulfills all its commitments as agreed upon above and Government will issue necessary orders to this effect.
(3) This Tripartite agreement shall be read in conjunction with the Kerala Electricity Second Transfer Scheme (Re-vesting), 2013."
A reading of the provisions in the scheme would indicate that clause (c) of the scheme provides for more than what is contemplated under the Act, permitting even promotions as per existing orders. At any rate, no provision is seen to the effect that qualification for appointment would continue to be the same. It is pertinent to note that the scheme and agreement were framed/entered into in 2013 and 2014 when the Regulations were very much in force in 2010.
21. In the judgment in L.I.C v. D.J. Bahadur [(1981) 1 SCC 315] relied on by Sri. Raju Joseph, the Apex Court held that a settlement under Section 18 of the ID Act, 1947 would prevail over the Regulations of the LIC, as ID Act is a special enactment with respect to the matters relating to industrial disputes (like bonus in that case) of the employees of LIC; whereas the LIC of India Act is a general Act dealing with various matters. In that case, employees of private insurers were brought under the LIC. Event hough the 1957 Act contained provisions which excluded the applicability of ID Act and effect of settlements, awards, etc., the LIC entered into settlements with its workmen in 1974, relating to payment of bonus. It is relevant to note the observations in para.32 regarding those settlements:
"xxxx the 1974 settlements have brought about a conflict-resolution on a variety of items including (a) scales of pay, (b) method of fixation in the new scales, (c) dearness allowance, (d) house rent allowance, (e) city compensatory W.P(C).No.6410/2019 & c/cases 31 allowance etc. Thus bonus is but one component of a multi-point agreement."
Even in that settlement it was provided that for all other matters, the workmen would be governed by LIC (Staff) Regulations, 1960. It was reiterated that a settlement will continue to govern the relations between the parties until a new agreement by way of settlement or statutory contract by the force of an award takes its place. It is also pertinent to note that revision of qualification is not included in the conditions of service covered by schedule 4 and hence Section 9A of the ID Act, for which notice is necessary; whereas the Apex court was considering the question regarding reduction of bonus to the Workmen. It is pertinent to note that the safety regulations apply to employees.
22. In this case, though the Electricity Act, 2003 relates to various aspects, the preamble of the Act would show that constitution of the Central Electricity Authority (Authority) is one of intents of the enactment. It is the duty of the Authority to specify the safety requirements for construction, operation and maintenance of electrical plants and electric lines; to promote measures for advancing the skill of persons engaged in the electricity industry; advise the appropriate Government on all technical matters relating to generation, transmission and distribution of electricity, etc. Regulations 2010 are issued for this purpose. The Industrial Disputes Act does not deal with any provisions relating to safety and security of public or of the employees involved in the generation, transmission or maintenance of electrical installations or with any W.P(C).No.6410/2019 & c/cases 32 matter which is covered by Section 73 of the Act 2003. In that view of the matter, I find that the contention that the long time settlements will prevail over Rules 6 and 7 of the Regulations is unsustainable and the judgment in LIC case(supra) is inapplicable to the facts and circumstances of this case.
23. At any rate, what is under challenge in these Writ Petitions is the vires of Regulation 116. If at all the Government found that there were difficulties to comply with the Regulations or the provisions in the scheme or agreement stood in the way of implementation, the State Government could have brought the same to the notice of the Authority when it was consulted before framing the Regulations.
24. The learned Government Pleader argued that the order Ext.P4 is a policy decision of the Government, as it is duty bound to protect the existing employees of the erstwhile Board, in the light of the provisions in Exts.R2 (a) and R2(b). There cannot be any policy decision or agreement over and above the rules and regulations. In this context it is relevant to note the correspondence between the KSEBL and the State Government in its orders/letters dated 26.10.2016, 26.11.2018, 19.12.2018 and the minutes of the meeting dated 19.12.2018 (Exts.P1, P2, P3 and P5) based on which Ext.P4 was issued on 13.02.2019. Ext.P1 was a letter in reply to the letter dated 19.05.2016 of the Secretary(Administration) of the KSEB. It is seen that the Government was addressed about the qualifications prescribed in Rules 6 and 7 of the Regulations 2010 and the obligation cast on the KSEBL to impart training to the employees under the power generating stations W.P(C).No.6410/2019 & c/cases 33 and also those in the transmission and distribution system. In Paras.2 to 4 of Ext.P1 letter Government stated as follows:
"2. As per letter read above, the Kerala State Electricity Board Limited, after inviting the attention of the Government to the staff pattern followed by it during the past, the comparatively lower percentage of personnel not having the mandatory qualification, the professional expertise acquired by its officials during their long stint in the organisation, the steps taken and followed by it in imparting training to its officials, its proposed action in re- deploying persons not having mandatory technical qualification to its Revenue Wing, etc. has requested the Government to relax the application of Rules 6 & 7 of the said Regulations.
3) Government after having examined the matter in detail and in exercise of powers conferred by Rule 116 of the said Regulations, is pleased to allow time for a further period of six months to Kerala State Electricity Board Limited for implementing the provisions of Rules 6 & 7 of the said Regulations but without prejudice to life and property.
4) The Kerala State Electricity Board Limited shall submit a time bound action plan to fulfil the requirements as per Regulations 6&7 of the Central Electricity Authority (Measures relating to Safety & Electric Supply) Regulations, 2010 within the said extended period."
25. In Ext.P2 letter dated 26.11.2018, the Chairman and Managing Director of KSEBL requested for further extension till 31.03.2019, pointing out that the Board had constituted a committee for formulating new recruitment, promotion and training policies in the Board in accordance with Regulations, 2010 and the works were progressing. In Ext.P3 letter the Chairman and Managing Director, referring to the earlier proceedings, stated as follows in the last paragraph:
"In this connection a meeting was convened by the Honourable Minister Power with the trade unions of KSEB Limited on 19.12.2018. In the meeting, trade unions requested that the Government may exempt the Board from the Regulations 6 & 7 in exercise of the powers conferred by the Rule 116 of regulations. As per Rule 116 of CEA Regulations, the Central Government or State Government, as the case may be, by order in writing, shall allow deviation in respect of matters referred in these regulations except regulation 30. There it is requested that necessary action may please be taken to exempt KSEB Ltd. From the implementation of Sub Regulations 6 & 7 of the CEA Regulations at earliest."
From Ext.P5 minutes of the meeting convened by the Minister with the Trade W.P(C).No.6410/2019 & c/cases 34 Union leaders, it is seen stated as follows:
"The Minister opined that the matters including promotion in respect of the existing employees of the KSBL shall continue to be done in accordance with the long term settlements. At the same time it is also difficult to proceed disregarding the safety Regulations under the Central Act. Therefore the matter has to be finalised in a manner acceptable to all.
2. The organisations of employees demanded that implementation of CEA Regulations would result in loss of benefits being enjoyed by them including denial of promotion and therefore the steps shall be taken for making promotions and appointments relaxing the CEA Regulations.
3. The CMD stated that relaxation was granted till 30.03.2017 from the application of the CEA Regulations and promotions were made accordingly. Thereafter the situation is such that the Regulations are enforced. Under the CEA Regulations, Supervisory duties can be performed only by those having qualification as per Regulations 6 and 7. Though the experience gained by those in service is sufficient for effectively performing the supervisory duties, the promotion of unqualified hands are likeli to be stayed by the courts. Therefore decision of Government is required granting relaxation from the Regulations effecting deviation from the Regulations. CMD stated that necessary steps are taken to impart training to all existing employees on safety measures. He also stated that though relaxation can be granted to the existing employees the Regulations are to be implemented in further appointments."
Ext.P4 order is passed thereafter based on the decision in Ext.P5 meeting convened by the Minister for Power with the leaders of trade unions and on the basis of the proposal placed by the Chairman and Managing Director based on the said demands, requesting to exempt the existing employees from the application of the Regulations 6 and 7 by deviation from the provisions, invoking its powers under Regulation 116 of the Regulation 2010. Stating the same, the Government ordered as follows in Ext.P4:
"Government examined the same, taking note of the importance of the Regulations, the right of the employees to enjoy the service benefits and promotional avenues based on long term settlements and found that any alteration of the service conditions would adversely affect the efficiency and smooth functioning of the KSEBL. The experience gained in the electricity wing is sufficient to perform the duties attached to each post effectively. Considering the above aspects, Government, in exercise of its powers under Regulation 116 of the Regulations 2010, hereby W.P(C).No.6410/2019 & c/cases 35 orders that the promotion of the existing employees would continue to be governed by the existing provisions, effecting deviation, in relaxation of Regulations 6 and 7."
Thus, in effect, the State Government has granted not only deviation but total exemption from the applicability of Regulations 6 and 7, not only to the employees who were in service as on the date of enforcement of Regulations 2010, but to all those who were in service as on the date of Ext.P4 order. The respondents cannot sustain Ext.P4 under the guise of policy decision also, over and above the provisions in the Regulations.
26. In these circumstances, I am of the considered view that Regulation 116 to the extent it permits Government to make deviations from the Regulations is beyond the legislative power conferred on the Electricity Authority under the Electricity Act, 2003. It is so declared. Ext.P4 order stated to have been issued under Regulation 116, but goes even beyond deviation and what is permitted under the said Regulation is also therefore unsustainable. There shall also be a direction to the respondent KSEBL to effect promotions in accordance with the provisions contained in Regulations 6 and 7 of the CEA Regulations, 2010.
The writ petitions are allowed accordingly.
Sd/-
(P.V.ASHA, JUDGE) rtr/ W.P(C).No.6410/2019 & c/cases 36 APPENDIX OF WP(C) 6410/2019 PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE GOVERNMENT ORDER DATED
26.10.2016.
EXHIBIT P2 TRUE COPY OF THE COMMUNICATION BY THE KSEB
TO THE SECRETARY DEPARTMENT OF POWER DATED
26.11.2018.
EXHIBIT P3 TRUE COPY OF THE COMMUNICATION BY THE KSEB
TO THE SECRETARY DEPARTMENT OF POWER DATED
19.12.2018.
EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER DATED
13.2.2019.
EXHIBIT P5 TRUE COPY OF THE MINUTES OF THE MEETING
DATED 19.12.2018.
EXHIBIT P6 TRUE COPY OF THE ORDER B.O.(FTD)
NO.219/2019 (Estt.II/6781/2017 DATED
07.03.2019.
RESPONDENTS' EXHIBITS:
EXHIBIT R2(a): TRUE COPY OF THE REVESTING SCHEME DATED
31/10/2013.
EXHIBIT R2(b): TRUE COPY OF THE TRIPARTITE AGREEMENT DATED
01/08/2014 BETWEEN, GOVERNMENT OF KERALA
KSEBL & EMPLOYEES' UNIONS.
EXHIBIT R5(a): RELEVANT EXTRACTS OF THE RECOMMENDATIONS OF
THE STANDING COMMITTEE ON ELECTRICITY
SAFETY DATED 10/02/2018.
W.P(C).No.6410/2019 & c/cases 37
APPENDIX OF WP(C) 6723/2019
PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE NATIONAL TRADE
CERTIFICATE OF THE IST PETITIONER DATED
15.7.2016.
EXHIBIT P2 A TRUE COPY OF THE DIPLOMA IN ELECTRICAL
ENGINEERING OF THE 3RD PETITIONER DATED
23.7.2004.
EXHIBIT P3 A TRUE COPY OF THE ORDER PASSED IN WPC
38957/2017 DATED 18.12.2018.
EXHIBIT P4 A TRUE COPY OF THE ORDER PASSED IN WPC
40912/2018 DATED 13.2.2019.
EXHIBIT P5 A TRUE COPY OF THE SAID GOVERNMENT ORDER
G.O.(P) NO.1/2019/POWER OF THE FIRST
RESPONDENT DATED 13.2.2019.
EXHIBIT P6 A TRUE COPY OF THE RELEVANT PORTIONS OF
SAID CENTRAL ELECTRICITY AUTHORITY
NOTIFICATION NO.CE/1/2/2017 DATED 1.3.2018.
RESPONDENTS' EXHIBITS:
EXHIBIT R2(a) TRUE COPY OF THE RE VESTING SCHEME DATED
31.10.2013.
EXHIBIT R2 (b) TRUE COPY OF THE TRIPARTITE AGREEMENT DATED
1.8.2014 BETWEEN, GOVERNMENT OF KERALA,
KSEBL & EMPLOYEES' UNIONS.
ANNEXURE-I TRUE COPY OF THE REGISTRATION CERTIFICATE
ISSUED BY THE REGISTRAR OF TRADE UNION
DATED 25.1.2003.
ANNEXURE-II TRUE COPY OF THE COMMUNICATION DATED
2.6.2016 ISSUED BY CHIEF PERSONNEL OFFICER,
KERALA STATE ELECTRICITY BOARD LIMITED TO
THE PETITIONER.
ANNEXURE-III TRUE COPY OF THE BYE-LAW.
ANNEXURE-IV TRUE COPY OF THE MEMORANDUM OF SETTLEMENT.
ANNEXURE-V TRUE COPY OF THE LIST OF OFFICE BEARERS WHO
OBTAINED PROTECTION.
W.P(C).No.6410/2019 & c/cases 38
APPENDIX OF WP(C) 6922/2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF NOTIFICATION NO.
CEI/1/59/CEA/EI DATED 20.9.2010 ISSUED BY
THE 3RD RESPONDENT.
EXHIBIT P2 TRUE COPY OF GOVERNMENT ORDER DATED
13.2.2019.
EXHIBIT P3 TRUE COPY OF GOVERNMENT ORDER DATED
26.10.2016 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF LETTER DATED 26.11.2018
SUBMITTED BY THE 2ND RESPONDENT TO THE
GOVERNMENT.
EXHIBIT P5 TRUE COPY OF LETTER DATED 19.12.2018
SUBMITTED BY THE 2ND RESPONDENT TO THE
GOVERNMENT.
EXHIBIT P6 TRUE COPY OF INTERIM ORDER DATED 5.3.2019
IN WPC NO. 6410/2019.