Kerala High Court
Unknown vs By Adv.Sri.J.Om Prakash
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 21ST DAY OF DECEMBER 2017 / 30TH AGRAHAYANA, 1939
WP(C).No. 35914 of 2016
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PETITIONER(S)
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SURESH BABU
DEVIKRIPA, PUKKATTUPARAMB,
NANTHIYATTUKUNNAM, NEAR AYURVEDA
HOSPITAL, NORTH PARAVOOR P.O.,
ERNAKULAM-683 513.
BY ADV.SRI.J.OM PRAKASH
RESPONDENT(S):
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1. THE REGIONAL JOINT LABOUR COMMISSIONER
KAKKANAD P.O., ERNAKULAM.
2. THE MANAGING DIRECTOR,
HDFC STANDARD LIFE INSURANCE
COMPANY LIMITED, CORPORATE AND REGISTERED
OFFICE, LODHA EXCELUS, 13TH FLOOR,
APPOLLO MILLS COMPOUND,
N.M. JOSHI MARG, MAHALAKSHMI,
MUMBAI-4000011.
Addl.3. THE REGIONAL JOINT LABOUR COMMISSIONER (CENTRAL)
SEA PORT, AIR PORT ROAD, KAKKANAD P.O., ERNAKULAM.
IMPLEADED AS PER ORDER DATED 21.06.2017 IN IA 8543/2017
R2 BY ADV. SRI.K.J.SAJI ISAAC
R2 BY ADV. DR.ELIZABETH VARKEY
R2 BY ADV. SRI.JITHIN SAJI ISAAC
RADDL. BY ADV. SMT.C.G.PREETHA, CGC
R BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
R BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
R BY GOVERNMENT PLEADER, SRI.C.P.PRADEEP
R BY GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-12-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 35914 of 2016 (L)
APPENDIX
PETITIONER(S)' EXHIBITS
P1 A TRUE COPY OF THE LETTER DATED 23/05/2016 ISSUED
TO THE PETITIONER
P2 A TRUE COPY OF THE DRAFT COPY OF THE 1-131 WHOLE
BODY SCINTIGRAPHY REPORT OF THE PETITIONER
ISSUED FROM THE AMRITA INSTITUTE OF MEDICAL
SCIENCES AND RESEARCH CENTRE DATED 30/11/2015
P3 A TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY
THE PETITIONER DATED 23/06/2016
P4 A TRUE COPY OF THE ORDER OF THE IST RESPONDENT
DATED 14/07/2016
P5 A TRUE COPY OF THE S.R.O NO. 327/2016 DATED 16/04/2016
RESPONDENT'S EXHIBITS : NIL
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//TRUE COPY//
P.A. TO JUDGE
SKS
C.R.
P.B.SURESH KUMAR, J.
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W.P.(C).No.35914 of 2016
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Dated this the 21st day of December, 2017
JUDGMENT
Petitioner was an employee in one of the establishments of the second respondent namely HDFC Standard Life Insurance Company Limited in the State. He was terminated from service in terms of Ext.P1 order on the basis of the recommendation made by the Internal Committee constituted under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ('the Act'). Aggrieved by the recommendation made by the Internal Committee under Section 13 of the Act, the petitioner preferred an appeal W.P.(C).No.35914 of 2016 : 2 : under Section 18 of the Act before the first respondent. Ext.P3 is the appeal. The first respondent, however, informed the petitioner in terms of Ext.P4 communication that the third respondent is the competent authority to entertain appeals preferred under Section 18 of the Act. According to the petitioner, the first respondent is the competent authority to deal with the appeals preferred under Section 18 of the Act. Hence this writ petition for appropriate reliefs.
2. Heard the learned counsel for the petitioner, the learned Government Pleader, the learned counsel for the second respondent and the learned Central Government Counsel.
3. Section 18 of the Act provides for an appeal against recommendations made by the Internal Committee constituted under the Act. Section 18 of the Act reads thus :
"18. Appeal (1) Any person aggrieved from the recommendations made under sub-section (2) of section 13 or under clause(i) or clause(ii) of sub-section (3) of section 13 or sub-section (1) or sub- section (2) of Section 14 or Section 17 or non-implementation of such recommendations may prefer an appeal to the court or W.P.(C).No.35914 of 2016 : 3 : tribunal in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist then, without prejudice to provisions contained in any other law for the time being in force, the person aggrieved may prefer an appeal in such manner as may be prescribed. (2) the appeal under sub-section (1) shall be preferred within a period of ninety days of the recommendations."
As explicit from Section 18, where the service rules applicable to the person concerned do not provide a forum for preferring appeal in respect of matters mentioned therein, the appeal has to be preferred in the manner prescribed under the Act. The case on hand is not a case where a forum is prescribed in terms of the service rules for preferring appeals in respect of matters mentioned in Section 18. The petitioner, in the circumstances, could prefer an appeal in respect of any of the matters mentioned in Section 18 only in the manner prescribed under the Act. Rule 11 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 ('the Rules') contains the prescription as regards the manner of preferring appeals in respect of matters mentioned in W.P.(C).No.35914 of 2016 : 4 : Section 18. The said rule reads thus :
"11. Appeal-subject to the provisions of Section 18, any person aggrieved from the recommendations made under sub-section (2) of Section 13 or under clauses (i) or clause (ii) of sub-section (3) of Section 13 or sub-section (1) or sub-section (2) of section 14 or Section 17 or non-implementation of such recommendation may prefer an appeal to the appellate authority notified under clause(a) of Section 2 of the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946)."
It is evident from the extracted rule that the appellate authority notified under Clause (a) of Section 2 of the Industrial Employment (Standing Orders) Act, 1946, is the competent authority to deal with the appeals under Section 18 of the Act. Section 2(a) of the Industrial Employment (Standing Orders) Act, 1946 reads thus :
"appellate authority means an authority appointed by the appropriate Government by notification in the Official Gazette to exercise in such area as may be specified in the notification the functions of an appellate authority under this Act:
Provided that in relation to an appeal pending before an Industrial Court or other authority immediately before the commencement of the Industrial Employment (Standing Orders) Amendment Act, 1963, that Court or authority shall be deemed to be the appellate authority"
Ext.P5 is the notification issued by the State Government W.P.(C).No.35914 of 2016 : 5 : under Clause (a) of Section 2 of the Industrial Employment (Standing Orders) Act, 1946 in relation to the establishments to which the State Government is the appropriate Government under the said statute. Similar notifications have been issued by the Central Government also in relation to the establishments of which the Central Government is the appropriate Government under the said statute. In terms of Ext.P5 notification, the first respondent is the competent authority to deal with Ext.P3 appeal.
4. The learned counsel for the second respondent, however, submits, relying on the definition of "appropriate Government" contained in Section 2(b) of the Act that the appropriate Government as far as the establishments of the second respondent is concerned, is the Central Government and therefore, in terms of the Rules, the appellate authority notified by the Central Government under Clause (a) of Section 2 of the Industrial Employment (Standing Orders) Act, 1946 alone will have jurisdiction to deal with appeals in the nature of Ext.P3. The issue therefore, is as to the W.P.(C).No.35914 of 2016 : 6 : appropriate Government in respect of the establishments of the second respondent.
5. Section 2(b) of the Act dealing with the definition of 'appropriate Government' reads thus:
"(b) "appropriate Government" means-
(i) in relation to a workplace which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly-
(A) by the Central Government or the Union territory administration, the Central Government;
(B) by the State Government, the State Government;
(ii) in relation to any workplace not covered under sub-clause (i) and falling within its territory, the State Government;"
The extracted definition of "appropriate Government"
contains two clauses, clause (i) and clause (ii). Clause (i) deals with workplaces established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the Central Government and State Government. Clause (ii) deals with work places which do not fall under clause (i). In the light of the said definition, there cannot be any doubt that if the establishments of the second respondent do not fall under clause (i), the State W.P.(C).No.35914 of 2016 : 7 : Government would be the appropriate Government in respect of the establishments of the second respondent which are situated within the territorial limits of the State Government. The question to be addressed therefore, is whether the establishments of the second respondent would fall under clause (i) of the definition of "appropriate Government". The Central Government would be the appropriate Government in relation to a workplace only if the same is one established, owned, controlled or wholly or substantially financed by the funds provided directly or indirectly by the Central Government. The case of the second respondent is that they are controlled by the Central Government and therefore, they would fall under clause (i) of the definition. It is conceded by the learned counsel for the second respondent that the Central Government is exercising only regulatory control over the affairs of the establishments in the nature of the second respondent. Whether such control would bring them under clause (i) of the definition of "appropriate Government" under the Act is W.P.(C).No.35914 of 2016 : 8 : the finer question to be answered. It is trite that one of the safest guides to the construction of sweeping general words in statutory provisions which are hard to apply in their full literal sense, is to examine other words of like import in the same provisions, and to see what limitations must be imposed on them; and if it is found that such words have to be subjected to limitations and qualifications, the words have to be understood with such limitations and qualifications. A passage to this effect from Jewish Blind Society Trustees v. any Henning [1961 1WLR 24] quoted in Maxwell on the Interpretation of Statutes, 12th Edition reads thus:
"(i) Individual words are not considered in isolation, but may have their meaning determined by other words in the section in which they occur."
The word 'controlled' contained in clause (i) of the definition, if understood in the light of the meaning of the other words used in the very same clause would make it clear that what was intended thereby by the legislature was deep and pervasive control of the Central and State Governments, and W.P.(C).No.35914 of 2016 : 9 : not merely regulatory control. The contention of the second respondent is thus rejected.
In the result, the writ petition is allowed and the first respondent is directed to dispose of Ext.P3 appeal, within one month from the date of receipt of a copy of this judgment.
sd/-
P.B.SURESH KUMAR JUDGE SKS