Patna High Court - Orders
The State Of Bihar & Ors vs Bihar Human Rights Commission & Ors on 24 September, 2013
Author: Navin Sinha
Bench: Navin Sinha, Vikash Jain
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.322 of 2013
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1. The State Of Bihar Through The Chief Secretary Government Of Bihar,
Patna
2. The Principal Secretary Finance Department, Government Of Bihar,
Patna
3. The Additional Secretary Department Of Finance, Government Of Bihar,
Patna
4. The Principal Secretary Department Of Information Technology,
Government Of Bihar, Patna
5. The Principal Secretary General Administration Department,
Government Of Bihar, Patna
.... .... Appellant/s
Versus
1. Bihar Human Rights Commission 9, Bailey Road, Patna Through Its
Secretary
2. Shri Ashutosh Kumar Pathak, Data Entry Operator Secretariat Treasury,
Nirman Bhawan, Patna
3. Shri Raj Kumar Jha Phulwarisharif, Tamtam Parao, Gaya
4. Shri Anil Kumar C/O Shri Yogendra Prasad Pandey Gyan Sarovar Public
School, Teachers Colony, Patna-802101
5. Shri Sudhir Kumar S/O Late Raghuni Prasad R/O Village And P.O.-
Patharhar, P.S.- Dhanarua, District- Patna
6. Bihar State Electronics Development Corporation (Beltron) Beltron
Bhawan, Shastri Nagar, Patna-800023 Through Its Managing Director
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Pushkar Narain Shahi, A.A.G. XIV, with
Mr. Mritunjay Kumar, AC to A.A.G. XIV
For Respondent no. 2 : Mr. Ratnesh Kumar Singh
For BELTRON : Mr. Sourendra Pandey
Mr. Nalin Vilochan Tiwary
Respondent No. 5 : Mr. Gauri Shankar Prasad.
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CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA
and
HONOURABLE MR. JUSTICE VIKASH JAIN
CAV ORDER
(Per: HONOURABLE MR. JUSTICE NAVIN SINHA)
9 24-09-2013I.A. No. 1888 of 2013 has been filed to condone delay of approximately 11 days in filing of the Appeal. Considering the duration and explanation for delay, important questions of law involved, submission of the parties, we condone the delay. Patna High Court LPA No.322 of 2013 (9) dt.24-09-2013 2 Respondent no.1, the Bihar Human Rights Commission (hereinafter referred to as ‗the Commission'), has not entered appearance despite valid service of notice. Respondent no.2 entered appearance suo-moto. Notice could not be served on respondent's 3, 4 and5. Subsequently it was directed to be served through respondent no.6. Respondent no.5 then entered appearance. Respondent no.6 stated that no person by the name of respondents 3 and 4 was enrolled with them.
The present Appeal assails order dated 18.12.2012 dismissing CWJC 18780 of 2012. It affirms order dated 28.5.2012 passed by the Commission fixing remuneration payable to Contract Data Entry Operators holding they should be paid one notch higher as per the proposed wage structure, i.e. Rs.10,086/-, recommended for proposed grade II. The recommendation dated 24.12.2011 of the Official Committee headed by the Principle Secretary, Finance, was modified by the Commission holding that the recommendation for wage revision was not in accordance with its observations dated 16.1.2012.
The Learned Single Judge held that the Data Entry Operators had been rendering satisfactory services from February 1999 i.e. for more than 12 years. The Commission had opined that the remuneration fixed was low affecting full enjoyment of life and liberty. Article 14 of the Constitution provided for equality and equal protection of the law, Article 21 protects life and personal liberty. Article 39 [d] of the Constitution was akin to Article 7 of the International Covenant on Economic Social and Cultural Rights, Patna High Court LPA No.322 of 2013 (9) dt.24-09-2013 3 1966. Fixation of wages below that paid in the private sector or that paid to technical workers under the government was exploitation denying living dignified wage as a model employer. Discrimination in payment of remuneration between regularly appointed Data Entry Operators and those on Contract was arbitrary.
Learned Additional Advocate General XIV, for the Appellants submitted that Data Entry Operators are not government servants. They are engaged on contract through service providers. They accepted the appointment aware of remuneration payable. Data Entry Operators consist of three categories. Remuneration in Grade III, the basic grade, was fixed at Rs. 7649/- and after statutory deductions it came to Rs. 6341/- . Grade II was fixed at Rs.11,908/- and after statutory deductions it came to Rs. 10,086/-. The next higher Grade I were to be paid Rs. 15,193/- and after statutory deductions came to Rs. 12,880/-. The Commission, a statutory body, lacked jurisdiction under the Protection of Human Rights Act, 1993(hereinafter referred to as the Act) to determine remuneration payable to Grade I at Rs.10,086/- payable to Grade II.
The minimum wage fixed in the IT sector was Rs.192/- per day which comes to approximately Rs 4992/- per month. It was later revised on 15.10.2012 to Rs. 200/- per day which comes to approximately Rs. 5200/- per month. A claim for revision of remuneration did not constitute violation of a human right as they were being paid more than the Minimum wages. The jurisdiction of the Commission is prescribed by Section 12 of the Act. Residuary clause (j) cannot be invoked to enlarge jurisdiction beyond what the Patna High Court LPA No.322 of 2013 (9) dt.24-09-2013 4 statute prescribes. The Commission, if at all could only have made a recommendation under Section 18 of the Act. It could not issue mandatory directions and monitor compliance. It had limited jurisdiction to call for a compliance report under Section 18 (5) of the Act. Under Section 18(1) it could direct payment of compensation or damages but not enhancement of salary. Section 18 (b) makes it explicit that the Commission has no plenary or prerogative as this Court under Article 226 of the Constitution.
No human rights as defined in section 2 (d) of the Act, of Data Entry Operators has been violated. The Commission held no inquiry for determination of good wage structure and without any empirical data that the wages fixed was not sufficient for survival erroneously opined that a claim for revision desiring a better standard of living constituted violation of a human right.
Fixing of wages and pay, an executive function, is a highly complex and technical matter involving a host of considerations. The Commission noticed these aspects observing it would not like to go into them. Relying on (2002) 2 SCC 141 (State of Maharashtra v. Assn. of Court Steno's.,P.A.,P.S.) and 2005 (4) PLJR 39 (DB) (The Bihar State Planning & Development Service Association v. The State of Bihar), it was contended that if Courts exercising powers under Article 226 cannot take over and decide wages, the Commission, a statutory body could not have done so. The Learned Single Judge, exercising powers under Article 226 of the Constitution likewise erred in interfering on pay and wage matters. Equal pay for equal work was not an abstract doctrine and its applicability depends Patna High Court LPA No.322 of 2013 (9) dt.24-09-2013 5 on several factors. Persons appointed on contract cannot be put at par with regular employees. The opinion of the Commission cannot have primacy over that of the expert committee. The objection of the Appellants that the Commission lacked jurisdiction has been noticed at paragraph 2 of the order under Appeal but has not been decided. The Learned Single Judge also erred in deciding the matter ex-parte without issuing notice to the private respondents.
Respondent no. 2 in his application dated 10.3.2011 had raised a limited grievance regarding non- payment of monthly wages since November 2008. Inadequate remuneration was not a grievance raised. The respondent had earlier filed CWJC 5798 of 2011 for the same relief and which is pending before the Court. The Commission travelled beyond the pleadings, holding a parallel proceeding, granted a relief not asked for. On 16.1.2012 respondent no. 3 then filed an application before the Commission generally with regard to adverse service conditions of Data Entry Operators.
Sri Ratnesh Kumar Singh for respondent no. 2, submitted that the relief sought in CWJC 5798 of 2011 was entirely different from that in the present writ application. The writ application, in which he is one of the petitioners, questioned the handing over of their services to Bihar State Electronics Development Corporation [BELTRON]. The order of the Commission dated 20.12.2011 holding of that low remuneration of Data Entry Operators affected their livelihood which constituted violation of a human right had not been challenged by the Appellants. Likewise there was no challenge to order dated 16.1.2012 of the Commission that apart from the question of low remuneration, Patna High Court LPA No.322 of 2013 (9) dt.24-09-2013 6 systemic changes need to be brought about to improve the service conditions of Data Entry Operators.
The Commission in these orders had opined that it was difficult for a person to sustain himself and the family on such meagre payments. Data Entry Operators were the mainstay of any office and whose importance would only increase in days to come with increased computerisation. Applying the principle of equal pay for equal work, considering their qualification and duties performed, it was opined not to be inferior, if not better, then regular employees. It was an anomalous position that the employer's share towards EPF/ESI contribution was being deducted from the remuneration of Data Entry Operators. The Commission in its order dated 18.4.2012 had held that the remuneration fixed expert Government Committee dated 14.12.2011 was not in accordance with its observations dated 16.1.2012 regarding Grade I operators. The Appellants had only challenged the order dated 28.5.2012 of the Commission. In absence of any challenge to the earlier orders, striking down of the subsequent order dated 28.5.2012, cannot deprive the respondents of the benefit of the earlier orders. The Commission possessed suo-moto powers on issues of human right violations.
The Appellants never challenged the jurisdiction of the Commission. They waived it and submitted to jurisdiction by participating in the proceedings. If the final order was not to their liking they cannot turn around and question jurisdiction. Reliance was placed on (1981) 1 SCC 568 (Fertilizer Corpn. Kamgar union v. Union of India). Relying on (1982) 3 SCC 2358 (People's Union for Patna High Court LPA No.322 of 2013 (9) dt.24-09-2013 7 Democratic rights v. Union of India) it was submitted that payment of low remuneration amounts to violation of human rights.
Section 2 [d] of the Act was widely worded and takes within its ambit rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India. Low remuneration affects life, equality and dignity of the individual read with Article 23 of the International Covenant of Human rights. Reliance was placed on (1996) 3 SCC 545 (Valsamma Paul (Mrs) v. Cochin University) for the definition of the term human rights and on (2000) 3 SCC 224 (Municipal Corporation of Delhi v. Female Workers(Muster Roll) for enforcement of International Covenants under the Act. The Commission had residuary powers under Section 12 (j). Sub-clause [d] of Section 12 empowered the Commission to review safeguards under the Constitution for protection of human rights and recommend measures for their effective implementation. Sub-clause [f] of Section 12 empowered the Commission to make recommendation for effective implementation of Treaties and International instruments relating to human rights.
The last submission was that the writ application was premature as the Commission had only made recommendation and asked for compliance report. No final orders have been passed by the Commission. Reliance was placed on (1995) 3 SCC 42 (Consumer Education & Research v. Union of India) Counsel for respondent no. 5 adopted the arguments made on behalf of respondent no.2. Counsel for respondent no.6 relied Patna High Court LPA No.322 of 2013 (9) dt.24-09-2013 8 upon the authority of the Government to fix the remuneration payable to contract Data Entry Operators.
We have considered the submissions on the behalf of the parties. Respondent no.2 on 10.3.2011 raised limited grievance for non-payment of monthly wages since November 2008 and not low remuneration. After the Commission issued notice other Data Entry Operators then petitioned the Commission regarding inadequate remuneration. The Commission then proceeded pro bono publico regarding remuneration payable to contract Data Entry Operators.
Persons whose human rights are violated can constitute a class. A class action would therefore lie before the Commission either suo moto or on an representative application filed on behalf of such persons. It may not be necessary that each of them must separately petition the Commission. But, the pre-condition for the same has to be jurisdiction in the Commission. Additionally, such class of persons must be indigent, lacking the capacity and wherewithal to approach the Commission individually for enforcement of human rights because of social and economic incapacity which also prejudices them from enjoying human rights. Data Entry Operators being paid above the minimum wage desiring a higher wage for a better standard of living certainly do not constitute an indigent class incapable because of social and economic conditions to individually espouse their grievance before the appropriate forum. The Commission does have the jurisdiction in general to hold pro bono public proceedings. In the facts of the present case, the Commission could not have proceeded as a class action in the form of a public interest proceeding. The Patna High Court LPA No.322 of 2013 (9) dt.24-09-2013 9 order has to be read as confined to the applicant respondents only.
In (2003)3 SCC 541) (P. M. Latha v. State of Kerala ) confining the relief to the petitioners only it was observed as follows:
―16...... We take note of the fact that all the B Ed appointees are not before us and even though all B Ed candidates who have been added as respondent's to these appeals have been served with notices of these appeals, only a few of them are represented through counsel. In these circumstances, we would restrict the relief to the candidates who were petitioners before the learned single judge including the present appellants‖ The application of respondent no. 2 became infructuous no sooner that due wages were paid to him during pendency of the matter before the Commission, even if it had jurisdiction. The Commission travelled beyond his pleadings, raised issues sou-moto and granted a relief which he had never asked for.
In (2009) 14 SCC 132(State of W.B. v. W.B. Registration Copy Writers Assn.) it was observed :
―83. There could be no doubt about the High Court's power to mould the relief. However, even in its plenary jurisdiction, while moulding the relief, there must be a plea to support such a relief. The relief granted by the High Court in this case is extraordinarily beyond the jurisdiction diction of the High Court and has no nucleus in the writ petition or in the original applications...‖ The Learned Single Judge noticed that the respondents were appointed in 1999. They petitioned the Commission in 2011.
Assuming for discussion, the Commission had jurisdiction in the matter, it was limited by Section 36 (2) of the Act which reads as follows :
―The commission or the State commission shall not inquire into any matter after the expiry of one year from the date on which the act constituting Patna High Court LPA No.322 of 2013 (9) dt.24-09-2013 10 violation of human rights is alleged to have been committed."
The Act contains no provision for condonation of the period.
We are therefore of the opinion that the Commission could not have assumed jurisdiction on the complaints filed beyond the period of one year from the date of alleged violation. We are conscious of the possibility for a claim of continuing wrong because of continued low payment of remuneration which would have to be read down to the period permissible only subject to jurisdictional issue.
Section 2 (d) of the Act reads as follows: -
―human rights‖ means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the international covenants and enforceable by courts in India.‖ The provision is widely worded and even otherwise is not capable of an exact definition by its very nature. Human rights can be said to constitute that bundle of rights inalienable to homo sapiens. It entails basic human requirement to provide for a life to exist without fear, dignity consistent with that available to other human beings.
These unalienable rights of the human being find reflection and are embodied in Chapter III of the Constitution christened as fundamental rights. In (2011) 1 SCC 694 (Siddharam Satlingappa Mhetre v. State of Maharashtra), human rights was explained as :
―36. All human beings are born with some unalienable rights light life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of right to life and liberty....‖ Patna High Court LPA No.322 of 2013 (9) dt.24-09-2013 11 A person denied minimum wage fixed by the law can possibly contend that apart from violation of a statutory right, it also constitutes violation of a human right. But a person being paid above the minimum statutory wage claiming higher remuneration for a desired better standard of living can hardly contend that it constitutes violation of a human right. By its very nature such a claim is relative in nature to the status of the person claiming. The Constitution maintains a subtle distinction with regard to human rights under Chapter III dealing with fundamental right to Life under Article 21 and Prohibition of ‖Begar‖ and other similar forms of forced labour under Article 23.
That payment of desired wages could never constitute violation of a fundamental right finds reflection in Chapter IV, Directive Principles of State Policy. Article 39 [a] only provides for adequate means to livelihood. Likewise Article 43 talks of a living wage only. That a claim for higher remuneration by revision of the same cannot constitute violation of a fundamental right to life under Article 21 of the Constitution was considered in [2003] 5 SCC 163 [A.K.Bindal v.
Union of India] holding as follows :
―18....... But to hold that mere non-revision of pay scale would also amount to a violation of the fundamental right guaranteed under Article 21 would be stretching it too far and cannot be countenanced. Even under the Industrial law, the view is that the workmen should get a minimum wage or a fair wage but not that their wages must be revised and enhanced periodically. It is true that on account of inflation there has been a general price rise but by that fact alone it is not possible to draw an inference that the salary currently being paid to them is wholly in adequate to lead a life with human dignity. What should be the salary structure to lead ―life with human dignity‖ is a difficult exercise and cannot be measured in absolute terms. It will depend upon the nature of duty and responsibility of the Patna High Court LPA No.322 of 2013 (9) dt.24-09-2013 12 post, the requisite qualification and experience, working condition and a host of other factors. The salary structure of similarly placed persons working in other public sector undertakings may also be relevant. The petitioners have not placed any material on record to show that the salary which is currently being paid to them is so low that they are not able to maintain their living having regard to the post which they are holding..‖ In the present case, the Commission itself held that fixation of remuneration was a policy matter, involving technical issues including of financial burden and observed that it would not like to go into those aspects. Notwithstanding the same, and devoid of the aforesaid considerations, it proceeded on the simple premise of a human right to have the remuneration revised, that the amount being paid was too meagre for a person to maintain himself and his family to lead a life with human dignity. The Commission did not have any empirical data before it and on analysis of which it arrived at the aforesaid conclusion. The conclusion was its mere ipse dixit. The Commission sought to equate its powers with that of the Court under Article 226 which despite having plenary and prerogative powers not only to issue writs under Article 226 but also to determine its own powers cannot decide and usurp the executive function for fixation of remuneration. The Appellants have aptly relied upon State of Maharashtra (supra), which refers to (1989) 4 SCC 187 (Supreme Court employees of welfare Association v. Union of India) and quotes from the same as follows :
―5........ It is important to notice that in the aforesaid judgment, the observation has been made:
―it is not the business of this court to fix the pay scales of the employees of any institution in Patna High Court LPA No.322 of 2013 (9) dt.24-09-2013 13 exercise of its jurisdiction under Article 32 of the Constitution. If there be violation of any fundamental right by virtue of any order or judgment, this Court can strike down the same but, surely, it is not within the province of this Court to fix the scale of pay of any employee in exercise of its jurisdiction under Article 32 of the Constitution‖ Similarly in [2003] 11 SCC 646 (State Bank of India v. K.P. Subbaiah) it was observed as follows :
―20. The fixation of pay scales is essentially a function of the executive. They are closely interlinked with the evaluation of duties and responsibilities that are attached to the posts and the pay scales are normally linked with conclusions arrived at by expert bodies like the Pay commission.
21. The degrees of skill, strain of work, experience involved, training required, the responsibility undertaken, mental and physical requirements, disagreeableness of the tasks, hazard attendant on work, and fatigue involved are some of the relevant factors which go into the process of fixing the pay scale.
23. Ordinarily, a pay structure is evolved keeping in mind several factors, for example [i] method of recruitment, [ii] level at which recruitment is made, [iii] the hierarchy of service in a given cadre, [iv] minimum educational/technical qualifications required, [v] Avenue of promotion, [vi] the nature of duties and responsibilities, [vii] the horizontal and vertical relativities with similar jobs, [viii] public dealings, [ix] satisfaction level, and [x] the employer's capacity to pay etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause unavoidable ripples in the other cadres as well.‖ The inapplicability of the doctrine equal pay for equal work to contract employees was noticed in [2006] 9 SCC 321 [State of Haryana v. Chiranjit Singh] holding as follows:
―22..... These are cases of persons employed on contract. To such persons the principle of equal Patna High Court LPA No.322 of 2013 (9) dt.24-09-2013 14 pay for equal work has no application..... Where a person is employed under a contract, it is the contract which will govern the terms and conditions of service. In State of Haryana v. Surinder Kumar persons employed on contract basis claimed equal pay as regular workers on the footing that their posts were interchangeable. It was held that these persons had no right to the regular posts until they are duly selected and appointed. It was held that they were not entitled to the same pay as regular employees by claiming that they are discharging the same duties....‖ The Commission is a statutory body created under an Act. It does not have any plenary or prerogative powers like the High Court.
It exercises only statutory powers. Its jurisdiction is prescribed under Section 12 of the Act which reads as follows:
12. Functions of the Commission.--The Commission shall perform all or any of the following functions, namely:--
(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, 1[or on a direction or order of any court] into complaint of--
(i) violation of human rights or abetment thereof; or
(ii) negligence in the prevention of such violation, by a public servant;
(b) intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;
2[(c) visit, notwithstanding anything contained in any other law for the time being in force, any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the inmates thereof and make recommendations thereon to the Government;]
(d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;
(e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and Patna High Court LPA No.322 of 2013 (9) dt.24-09-2013 15 recommend appropriate remedial measures;
(f) study treaties and other international instruments on human rights and make recommendations for their effective implementation;
(g) undertake and promote research in the field of human rights;
(h) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;
(i) encourage the efforts of non-governmental organisations and institutions working in the field of human rights;
(j) such other functions as it may consider necessary for the promotion of human rights.‖ None of the aforesaid provisions, vests jurisdiction in the Commission to fix remuneration of contract employees. Its powers are limited under section 18(a)(i) to recommending payment of compensation or damages to the concerned whose human right is violated.
The Commission is not a judicial body. It has only been vested with certain powers of the Civil Court under Section 13 for the purpose of inquiry into complaints regarding summoning and enforcing attendance of witnesses, examining them on oath, discovery and production of documents, evidence on affidavit, requisitioning of any public record or copy, issuing commissions for examination of witnesses/documents etc. It is in that context it has been deemed to be a Civil Court for certain purposes and proceedings before it deemed to be a judicial proceeding for limited purposes. The residuary clause (j) of Section 12 cannot be expanded to include fixation of remuneration.
The limitation for exercise of powers by the Commission Patna High Court LPA No.322 of 2013 (9) dt.24-09-2013 16 under Section 36(2) and other statutory provisions of the Act was noticed in (2004] 2 SCC 579 (N. C. Dhoundial v. Union of India). The National Human Rights Commission had opined that ―The violation of human rights is a continuing wrong unless due reparation is made. It gives rise to recurring cause of action till redressal of the grievance. The protection of Human Rights Act, 1993 has been enacted with the object of providing better protection of human rights and it cannot be assumed that mere lapse of a certain period would be sufficient to render the violation immune from the remedy of redressal of the grievance.‖ Negating the same it was held as follows:
―14. We cannot endorse view of the Commission. The Commission which is a ―unique expert body‖ is, no doubt, entrusted with a very important function of protecting human rights, but, it is needless to point out that the Commission has no unlimited jurisdiction nor does it exercise plenary powers in derogation of the statutory limitations. The Commission, which is the creature of statute, is bound by its provisions. Its duties and functions are defined and circumscribed by the Act. Of course, as any other statutory functionary, it undoubtedly has incidental or ancillary powers to effectively exercise its jurisdiction in respect of the powers confided to it but the Commission should necessarily act within the parameters prescribed by the Act creating it and the confines of jurisdiction vested in it by the Act. The Commission is one of the fora which can redress the grievances arising out of the violation of human rights. Even if it is not in a position to take up the inquiry and to afford redressal on account of certain statutory fetters or handicaps, the aggrieved persons are not without other remedies. The assumption underlying the observation in the concluding passage extracted above proceeds on an incorrect premise that the person wronged by violation of human rights would be left without a remedy if the Commission does not take up the matter.
15....... Section 36 (2) of the Act thus places an embargo against the Commission inquiring into any matter after expiry of one year from the date of the alleged act violative of human rights..... it is Patna High Court LPA No.322 of 2013 (9) dt.24-09-2013 17 a jurisdictional bar. Periods of limitation, though basically procedural in nature can also operate as fetters on jurisdiction in certain situations.....‖
16. In fact, section 36 [2] does not mince words and the language used is clear and categorical....‖ We are of the opinion, that the Commission exceeded its statutory jurisdiction to determine remuneration, wrongly assumed authority to overrule the decision of an expert committee on remuneration because it was not in accord with certain observations of the Commission, which itself was in excess of jurisdiction.
If the Commission inherently lacked jurisdiction, mere participation by the appellants in proceedings before it and failure to raise a formal objection to jurisdiction cannot confer jurisdiction in the Commission. In A.I.R 1963 SC 734 (Pioneer Traders v. Chief Controller, Imports and Exports) it was held :
―31.... Where an authority whether judicial or quasi-judicial, has in law no jurisdiction to make an order the omission by a party to raise before the authority the relevant facts for deciding that question cannot clothe it with jurisdiction.‖ No independent rights accrued to the respondents by orders of the Commission dated 20.12.2011, 12.3.2012 and 18.4.2012. They were all interim direction's which have culminated in the final order dated 28.5.2012. It was not necessary for the appellants to challenge each of these orders and in absence of which any rights survive in them for enforcement.
We have examined the judgments relied upon by counsel for respondent no.2 and find that none of them are relevant and have Patna High Court LPA No.322 of 2013 (9) dt.24-09-2013 18 application to the facts of the present case. In Fertilizer Corpn.
Kamgar Union (supra), the issue related to auction of an industrial unit questioned by the workers on the ground that it affected the rights of the employees under Article 19(1)(g) of the Constitution as they stood to lose their livelihood. The case of Peoples Union for Democratic Rights (supra) related to a Public interest litigation with regard to forced labour, Begar and in contravention of other labour laws for the Asian games project. Consumer Education & Research Center (supra) is related to health and medical aid of workers engaged in hazardous employment being a fundamental right.
Likewise Valsamma Paul (supra) was considering the question of the caste or religion of the wife upon an inter-caste/inter-religion marriage. Municipal Corpn. Of Delhi (supra) related to the labour laws and maternity benefits.
In conclusion, for reasons discussed, the order of the Commission dated 28.5.2012 and the order under Appeal dated 18.12.2012 are both set aside.
The Appeal is allowed.
(Navin Sinha,J.) Vikash Jain, J I agree.
(Vikash Jain, J) Patna High Court The 24 th September, 2013 SNKumar/- (NAFR)