Kerala High Court
Kerala State Electricity Board Limited vs Kerala State Human Rights Commission on 13 April, 2023
Author: S. Manikumar
Bench: S.Manikumar, Murali Purushothaman
WP(C) No.12374/2023 1 / 16
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
Thursday, the 13th day of April 2023 / 23rd Chaithra, 1945
WP(C) NO. 12374 OF 2023
PETITIONER:
KERALA STATE ELECTRICITY BOARD LIMITED, REPRESENTED BY ITS SECRETARY
(ADMINISTRATION), VYDYUTHI BHAVANAM, PATTOM P.O.,
THIRUVANANTHAPURAM- 695004.
RESPONDENTS:
1. KERALA STATE HUMAN RIGHTS COMMISSION, REPRESENTED BY ITS SECRETARY
GENERAL PMG JUNCTION, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM -
695033.
2. SHYNI. G., SHEEJA BHAVANAM, MALAPPARA, KULAKKADA EAST, KOLLAM -
691521.
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to pass an interim Order staying the operation and implementation
of Exhibit P5 during the pendency of the above Writ Petition (Civil).
This petition coming on for orders upon perusing the petition and
the affidavit filed in support of WP(C) and upon hearing the arguments of
SRI. ANTONY MUKKATH, Advocate for the petitioner, the Court passed the
following:
P.T.O
WP(C) No.12374/2023 2 / 16
S. MANIKUMAR, CJ
&
MURALI PURUSHOTHAMAN, J
-----------------------------------------------
W.P(C) No. 12374 of 2023 (V)
----------------------------------------------
Dated this the 13th day of April, 2023
ORDER
S. Manikumar, CJ.
Order of the Kerala State Human Rights Commission dated 2.11.2022 in H.R.M.P No.1101/11/11/2022/KLM, is impugned in this writ petition on the ground inter alia that Kerala State Human Rights Commission has no jurisdiction to entertain complaints regarding service matters.
2. Order of Human rights Commission is reproduced:
"KERALA STATE HUMAN RIGHTS COMMISSION PRESENT : V.K.Beenakumari Hon'ble Member H.R.M.P No. 1101 / 11 / 11 / 2022 / KLM COMPLAINANT : Smt. Shyni G. Sheeja Bhavan, Malappara, Kulakkada East, Kollam.
Order Dated 2022 November 2 The petition matter is that the petitioner being the wife of a contract employee under KSEB who got electrocuted while on duty was subsequently engaged by the KSEB on a temporary basis and thereafter removed and there is no other alternative for herself and her children aged six and four to depend.WP(C) No.12374/2023 3 / 16
W.P(C).12374/2023 2 In the report submitted by Kerala State Electricity Board Limited in the matter, it is stated that the petitioner is the wife of Sri. Sibin Jose who died in the accident on 19-3-2020, and as a help to the family to overcome the distress situation, even though she didn't possess any experience, she was given the job in the front office of Electrical Section, Kulakkada temporarily on a daily basis, but she didn't attend the office regularly and was sent out from the job as she was not able to manage the front office, and her requirement of Part time sweeper's job was not available for want of vacancy under the division and she was informed that she shall be considered in the event of a future vacancy in Part time sweeper's post arise.
However, the petitioner in person appeared before the Commission and stated that she was terminated for accommodating a relative of some other person, and she has not been remarried as on date, and she and her children are unable to live after the death of her husband, and she is willing to work in any other division in case she doesn't get a job in this division.
Under this circumstance, even though the petitioner's husband was a contract employee, considering the special situation that the death occurred due to electrocution while discharging the job entrusted by KSEB, it is directed to the Executive Engineer of Kerala State Electricity Board to urgently appoint her to a job on humanitarian grounds based on her qualification and experience or at least a part time sweeper's job in this division or nearby division and the petition is disposed of accordingly.
The copy of this order shall be provided to the complainant and Chief Executive Eingineer, KSEB, Pattom, Thiruvananthapuram.
Sd/-
V.K.Beenakumari Member Kerala State Human Rights Commission Sd/-
Registrar"
3. Short facts leading to filing of the writ petition are as under:
WP(C) No.12374/2023 4 / 16W.P(C).12374/2023 3 3.1. The Kerala State Human Rights Commission has no jurisdiction to entertain a service matter. Clause (f) of Regulation 17 of the Kerala State Human Rights (Procedure) Regulations, 2001, clearly specifies that issues related to civil disputes, service matters, labour/industrial disputes are not maintainable under the Kerala State Human Rights Commission. The above provision makes it abundantly clear that the Commission ought not have entertained the complaint preferred by the 2 nd respondent, and therefore, the complaint was liable to be dismissed in limine.
3.2. Though the Commission issued notice dated 22.02.2022 directing to submit a report on or before 22.03.2022, the Commission did not summon or heard the authorised representatives of the Kerala State Electricity Board Limited, as provided in Regulation 38 of the Kerala State Human Rights Commission (Procedure) Regulations 2001. As per Regulation 38 of the Regulations 2001, the Commission, before passing an order based on the complaint, has the power to summon the person, who should be heard for the appropriate disposal of the matter. Exhibit P5 order was passed by the Commission, without WP(C) No.12374/2023 5 / 16 W.P(C).12374/2023 4 hearing the Kerala State Electricity Board or its representative or any other concerned authority. Therefore, Exhibit P5 is in violation of Regulation 38 and is liable to be quashed on that ground also.
4. Grounds on the basis of which writ petition is filed are as under:
"A. Ext. P5 order dated 02-11-2022 in HRMP No. 1101/11/11/2022/KLM of the Kerala Human Rights Commission directing the Kerala State Electricity Board to appoint the 2nd respondent herein depending on her qualification and experience or at least as a Sweeper, on humanitarian ground at Electrical Division Kottarakkara or other nearest Electrical Division, as a special case is issued without jurisdiction and therefore the same is liable to be interfered.
B. The Kerala State Electricity Board Limited is a company incorporated under the Companies Act and is fully owned by the Government of Kerala. The Kerala Public Service Commission (Additional Functions) Act 1963 is applicable to the Kerala State Electricity Board Limited. The Kerala Public Service Commission (Consultation by the Kerala Electricity Board) Regulations, 1967 is made by the Government for making appointments to the posts and services under the KSEBL. Therefore, all appointments and direct recruitment to the KSEBL can be done only through the Kerala Public Service Commission. The exception is in WP(C) No.12374/2023 6 / 16 W.P(C).12374/2023 5 respect of appointments under the Compassionate Employment Scheme and Sports Quota. The Compassionate Employment Scheme prevailing in the Kerala State Electricity Board provides employment assistance to regular employees of the Kerala State Electricity Board. The Compassionate Employment Scheme of the KSEBL is not applicable to contract employees or temporary employees. Therefore, the dependents of the deceased contract employee are not covered by the Compassionate Employment Scheme applicable to the KSEBL. It follows that the directions issued by the 1st respondent to appoint the 2 nd respondent herein under the KSEBL is legally unsustainable and is liable to be interfered.
C. The dependents of the deceased contract workers are entitled for compensation under the Employees' Compensation Act, 1923. In accordance with the provisions contained in the Employees Compensation Act, 1923, the KSEBL has paid the compensation to the dependents of the deceased Sibin Jose as evidenced by Ext. P1. Even though in the report submitted by the Executive Engineer before the Human Rights Commission, it has been specifically stated that the compensation of Rs.15,79,400/- was given to the dependents of the deceased Sibin Jose, nothing is mentioned in Ext. P5 order regarding the same. On what ground the 2nd respondent is entitled for appointment is also not stated in Ext. P5. Therefore, it is evident that Ext. P5 order is issued on an erroneous consideration and is not issued based on any legal provisions. Hence, Ext. P5 order is liable to be interfered by this Court.WP(C) No.12374/2023 7 / 16
W.P(C).12374/2023 6 D. The Kerala State Human Rights Commission has no jurisdiction to entertain a service matter. As per Clause
(f) of Regulation 17 of the Kerala State Human Rights (Procedure) Regulations 2001, clearly specifies that issues related to civil disputes, service matters, labour/industrial disputes are not maintainable under the Kerala State Human Rights Commission. The above provision makes it abundantly clear that the Commission ought not have entertained the complaint preferred by the 2nd respondent and therefore, the complaint was liable to be dismissed in limine. Though the Commission issued a notice dated 22.02.2022 directing to submit a report on or before 22-03-2022, the Commission did not summon or heard the authorised representatives of the Kerala State Electricity Board Limited as provided in Regulation 38 of the Kerala State Human Rights Commission (Procedure) Regulations 2001. As per Regulation 38 of the Regulations 2001, the Commission, before passing an order based on the complaint, has the power to summon the person, who should be heard for the appropriate disposal of the matter. Ext.P5 order was passed by the Commission without hearing the Kerala State Electricity Board for its representative or any other concerned authority. Therefore, Ext.P5 is in violation of Regulation 38 and is liable to be quashed on that ground also.
E. The issue regarding the jurisdiction of the Kerala State Human Rights Commission to entertain a complaint regarding service matter is no longer res integra in view of the decision of the Division Bench of WP(C) No.12374/2023 8 / 16 W.P(C).12374/2023 7 this Court in Malabar Cements Ltd. vs. K Baburajan & Others [2019 (4) KHC 131]. In the above decision, considering Clause (f) of Regulation 17 of the Kerala State Human Rights Commission (Procedure) Regulations 2001, the Division Bench of this Court held that the Commission should have dismissed the complaint in limine as the same is pertaining to a service matter. In District Tourism Promotion Counsel, represented by its Secretary vs. State of Kerala, represented by its Secretary & Other reported in 2021 SCC Online Kerala 3052, this Court held that the Commission has no jurisdiction to entertain a complaint in service matters and consequently to adjudicate the same. The above two decisions of this Court have been followed by a Division Bench of this Court in the judgment dated 13.02.2023 in WP(C) No.5627 of 2019 reported in 2023/KER/10231. Therefore, it is settled legal position that Kerala State Human Rights Commission has no jurisdiction to entertain a complaint relating to service matter. Thus, the 1st respondent went wrong in entertaining the complaint filed by the 2 nd respondent."
5. Attention of this Court is also invited to a decision of this Court in W.P(C).No.5627/2019 dated 13.2.2023, by which, this Court, after considering the statutory provisions and the decisions referred to therein, quashed the order of Kerala State Human Rights Commission.
WP(C) No.12374/2023 9 / 16W.P(C).12374/2023 8
6. For brevity, it is worthwhile to extract relevant paragraphs of the judgment in W.P(C).No.5627/2019 dated 13.2.2023:
"9. On the aspect of jurisdiction of the Kerala State Human Rights Commission in entertaining a complaint regarding service matter, after considering clause (f) of Regulation 17 of the Kerala State Human Rights Commission (Procedure) Regulations, 2001, a Hon'ble Division Bench of this Court in Malabar Cements Ltd. (M/s.) v. K. Baburajan and Others [2019 (4) KHC 131], held as under:-
"18. At this juncture, we may take note of Regulation 17 of the Kerala State Human Rights Commission (Procedure) Regulations, 2001 which deals with maintainability of complaints before the Commission. Regulation 17 states that, the Commission may dismiss in limine complaints of the nature enumerated in clauses (a) to (l). Clause (f) of Regulation 17 provides that, the Commission may dismiss in limine, complaints wherein the issue raised relates to civil disputes, service matters, labour or industrial dispute. Clause (i) of Regulation 17 provides that, the Commission may dismiss in limine complaints, if the matter is covered by a judicial verdict/decision of the National Commission or a State Commission. Similarly, going by clause (l), the Commission may dismiss the complaints in limine, where the matter raised is outside the purview of the Commission or on any other ground.
19. Clause (f) of Regulation 17 specifically provides that, the Commission may dismiss in limine a complaint, if the issue raised relates to service matters. The issue raised by the first respondent in Ext.P6 petition relates to his appointment as a Mazdoor in the company and it is a service matter. The Commission should have dismissed the complaint in limine especially in the light of Ext.P1 WP(C) No.12374/2023 10 / 16 W.P(C).12374/2023 9 judgment of this Court in the same matter between the same parties, which had attained finality."
10. That apart, after considering the statutory provisions, in District Tourism Promotion Council, represented by its Secretary v. State of Kerala represented by the Secretary and Others [2021 SCC Online Ker. 3052], this Court has held as under:
"8. In exercise of the powers conferred by Section 10(2) read with Section 29 of the Protection of Human Rights Act, 1993, the Kerala State Human Rights Commission has made the Kerala State Human Rights Commission (Procedure) Regulations, 2001. As per Regulation 17, certain complaints are not ordinarily maintainable and that the Commission may dismiss in limine complaints of the following nature:
(a) Illegible;
(b) vague, anonymous or pseudonymous;
(c) trivial or frivolous;
(d) barred under sub-section (1) or (2) of section 36 of the Act;
(e) allegations do not disclose involvement of any public servant;
(f) issue raised relates to civil disputes, service matters, labour or industrial dispute;
(g) allegations do not raise any violation of human rights;
(h) If the matter raised is subjudice before a Court or Tribunal;
(i) the matter is covered by a Judicial verdict/decision of the WP(C) No.12374/2023 11 / 16 W.P(C).12374/2023 10 National Commission or a State Commission.
(j) Where the complaint is only a copy of the petition addressed to some other authority.
(k) Where the petition is not signed or where the original petition is not sent to the Commission;
(l) Where the matter raised is outside the purview of the Commission or on any other ground.
9. As the matter pertains to service dispute, in the light of clause (f) of Regulation 17 of the Kerala State Human Rights Commission (Procedure) Regulations, 2001, in our considered view, the Commission ought to have dismissed Exhibit P5 complaint preferred by respondent No. 4 in limine.
10. To put it clear, undoubtedly the Commission has no jurisdiction to entertain the complaint in service matters and consequently to adjudicate the same. Accordingly, the order passed in H.R.M.P. No. 7247/11/11/19/KLM is also without jurisdiction.
11. In such a view of the matter, instant writ petition is allowed and Exhibit P7 order dated 30.01.2020 in H.R.M.P. No. 7247/11/11/19/KLM is quashed, and consequently Exhibit P5 complaint filed by the 3rd respondent dated 3.10.2019 on the files of the Kerala State Human Rights Commission is dismissed."
11. That apart, reading of the order dated 30.11.2018 indicates that by way of the interim order, the main relief sought for in the complaint has been issued. Notwithstanding the jurisdiction of Kerala State Human Rights Commission in entertaining a complaint, it is well settled that interim order WP(C) No.12374/2023 12 / 16 W.P(C).12374/2023 11 should not be issued in the guise of the main relief itself. Reference can be made to a few decisions:-
(i) In The State of Orissa v. Madan Gopal Rungta [AIR 1952 SC 12], a Constitution Bench of the Hon'ble Apex Court clearly spelt out the contours within which interim relief can be granted, and held as under:-
"..........An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding. If the Court was of opinion that there was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution such suit, issue directions in the nature of temporary injunctions, under Art.226 of the Constitution. In our opinion, the language of Art.226 does not permit such an action. On that short ground, that judgement of the Orissa High Court under appeal cannot be upheld."
(ii) In Deoraj v. State of Maharashtra reported in AIR 2004 SC 1975, the Hon'ble Supreme Court, at para 12, held as under:-
"Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case - of a standard much WP(C) No.12374/2023 13 / 16 W.P(C).12374/2023 12 higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent."
(iii) In State of U.P v. Ram Sukhi Devi [(2005) 9 SCC 733] the Hon'ble Apex Court observed that final relief cannot be granted by way of interim relief. Paragraph 8 of the said decision is extracted hereunder:
"To say the least, approach of the learned Single Judge and the Division Bench is judicially unsustainable and indefensible. The final relief sought for in the writ petition has been granted as an interim measure. There was no reason indicated by learned Single Judge as to why the Government Order dated 26.10.1998 was to be ignored. Whether the writ petitioner was entitled to any relief in the writ petition has to be adjudicated at the time of final disposal of the writ petition. This Court has on numerous occasions observed that the final relief sought for should not be granted at an interim stage. The position is worsened if the interim direction has been passed with stipulation that the applicable Government Order has to be ignored. Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that of a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See Assistant Collector of Central Excise, West Bengal v. Dunlop India Ltd. (1985 (1) SCC 260 at p. 265), State of Rajasthan v. M/s Swaika Properties (1985 (3) SCC 217 at p.224), State of U.P. and Ors. v.WP(C) No.12374/2023 14 / 16
W.P(C).12374/2023 13 Visheshwar (1995 Supp (3) SCC 590), Bharatbhushan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd. Musa and Ors. (1995 Supp (2) SCC 593), Shiv Shankar and Ors. v. Board of Directors, U.P.S.R.T.C. and Anr. (1995 Supp (2) SCC 726) and Commissioner/Secretary to Govt. Health and Medical Education Department Civil Sectt., Jammu v. Dr. Ashok Kumar Kohli (1995 Supp (4) SCC 214).] No basis has been indicated as to why learned Single Judge thought the course as directed was necessary to be adopted. Even it was not indicated that a prima facie case was made out though as noted above that itself is not sufficient. We, therefore, set aside the order passed by learned Single Judge as affirmed by the Division Bench without expressing any opinion on the merits of the case we have interfered primarily on the ground that the final relief has been granted at an interim stage without justifiable reasons. Since the controversy lies within a very narrow compass, we request the High Court to dispose of the matter as early as practicable preferably within six months from the date of receipt of this judgment."
In the light of the statutory provisions, discussions, and the decisions considered, we are of the view that the interim order in HRMP No. 7107/2018/KNR dated 30.11.2018, is liable to be set aside. Accordingly, set aside."
7. Giving due consideration to the averments made in the writ petition, order of Human Rights Commission in H.R.M.P No.1101/11/11/2022/KLM, statutory provisions and the decisions stated supra, we are of the view that petitioner has made out a prima facie case for admission. Accordingly, writ petition is admitted.
8. Issue notice to respondent No.2 by speed post, returnable on 23.5.2023.
WP(C) No.12374/2023 15 / 16W.P(C).12374/2023 14
9. There shall be an interim stay of impugned order of Kerala State Human Rights Commission in H.R.M.P No.1101/11/11/2022/KLM dated 2.11.2022.
Sd/-
S. Manikumar, Chief Justice Sd/-
Murali Purushothaman, Judge sou. xxxx 13-04-2023 /True Copy/ Assistant Registrar WP(C) No.12374/2023 16 / 16 APPENDIX OF WP(C) 12374/2023 Exhibit P-1 A TRUE COPY OF THE RECEIPT DATED 07-09-2020 ISSUED BY THE SECRETARY IN CHARGE FOR EMPLOYEES' COMPENSATION COMMISSIONER, KOLLAM Exhibit P-5 A TRUE COPY OF ORDER DATED 02-11-2022 IN HRMP NO.
1101/11/11/2022/KLM OF THE KERALA STATE HUMAN RIGHTS COMMISSION WITH ENGLISH TRANSLATION 13-04-2023 /True Copy/ Assistant Registrar