Case: Muhammed A.A. &amp; Ors Vs. State of Kerala &amp; Ors

1. Writ Petition (Civil) No. 6723/ 2019 (M) was filed in the High Court of Kerala for a declaration that Regulation 116 of the Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010 (for short the Safety Regulations) is ultra vires the regulation making power of the Central Electricity Authority under the Electricity Act, 2003 (for short the Electricity Act) and, therefore, void. The Petitioner- therein also sought for a declaration that the State of Kerala has no power to allow deviation under sub- regulation (1) of Regulation 116 in respect of qualifications prescribed in Regulations 6 and 7 of the Safety Regulations. A further relief of declaration that the Order dated 13.02.2019 issued by the State of Kerala as arbitrary, illegal, unreasonable and without jurisdiction was sought in the Writ Petition. To the extent that it permits the State Government to make deviations, Regulation 116 was declared to be beyond the power conferred on the Central Electricity Authority under the Electricity Act by a learned Single Judge of the High Court of Kerala. The order dated 13.02.2019 by which exemption from acquiring qualification was granted to erstwhile employees was held to be unsustainable. The Kerala State Electricity Board Limited (KSEBL) was directed to make promotions strictly in accordance with the provisions contained in Regulations 6 and 7 of the Safety Regulations. KSEBL, Respondent No.2 in Civil Appeal arising out of Special Leave Petition (Civil) No. 9564-9566/2020 had challenged the judgment of the learned Single Judge of the High Court by filing an appeal.2. The Division Bench formulated the following points for consideration: -1. Is Regulation 116 of the Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010, ultra vires the authority and powers conferred on the Central Electricity Authority on account of the Statutory Provisions in the Electricity Act, 2003 and on account of impermissible delegation or on account of being manifestly arbitrary?2. Can the provisions of a scheme framed under Section 131 r/w Section 133(2) of the Electricity Act, 2003 offer any protection to officers / employees who do not possess the qualifications required in terms of the Safety Regulations?3. If the answer to the first issue is in the negative, whether the order issued by the Government of Kerala on 13-02-2019 suffer from the vice of non- application of mind or is otherwise arbitrary, unreasonable or irrational?3. The Division Bench of the High Court held that the Regulation 116 of the Safety Regulations is neither ultra vires the Electricity Act nor manifestly arbitrary and that it is well in line with the objects and purpose of the enactment. It held that the framing of Regulation 116 is not ultra vires the provisions of the Electricity Act, 2003 and is not beyond the scope of the rule making power of the Central Electricity Authority. Referring to Section 133(2) of the Electricity Act, the High Court was of the opinion that the exemption from the applicability of Regulation 6 & 7 of the Safety Regulations by the order dated 13.02.2019 can be granted only in favour of persons who were employed with the KSEBL on the date of the formulation of the transfer scheme and such of those employees who have joined service after 31.10.2013 were not entitled to such an exemption. For this reason, the Government Order dated 13.02.2019 was partly set aside by the Division Bench to the extent that it granted exemption to the employees/officers who entered service after 31.10.2013.

Reasoning:
It is clear from the above discussion that the service conditions of the erstwhile employees of KSEB are protected by the proviso to Section 133 of the Electricity Act. After the transfer scheme was formulated, the erstwhile employees were entitled to claim that the conditions of their service cannot be altered to their detriment in view of the tripartite agreement dated 01.08.2014.19. The principal contention of the Appellants which found favour with the learned Single Judge of the High Court is that Regulation 116 is ultra vires the Electricity Act, 2003. The Division Bench reversed such findings of the Single Judge. As the learned counsel appearing for the Appellants have not made any submission relating to the said point, it is not necessary for us to adjudicate on the issue of the validity of Regulation 116.Glynn v. Margetson & Co. (supra) which is a judgment of the House of Lords in which a clause in the bill of lading mentioning the term deviation was to be interpreted.The dispute in the said case was in relation to the damage caused to perishable goods loaded in a ship headed towards Liverpool. Compensation was sought on the ground that the vessel proceeded to the port in the north east of Spain and not west-ward in the direction of Liverpool. The House of Lords was of the opinion that the primary intent and object of bill of lading must be considered and the general / printed words therein must be construed so as to not conflict with that intent and object. We are afraid that this judgment is of no assistance to this Court in interpreting the import of the word deviation as the House of Lords has specifically interpreted the term / clause in context of the object and intention of the bill of lading.M/s. Dhanrajamal Gobindram v. M/s. Shamji Kalidas & Co. (supra).The question that fell for consideration in this case pertains to the interpretation of the words exemption and permission used in Section 5 and 21 of the Foreign Exchange Regulation Act, 1973. In context of the dispute that arose in the said case, this Court was of the opinion that the word exemption shows that a person is put beyond the application of law while permission shows that he is granted leave to act in a particular way. This Court further held that the word permission is a word of wide import as it means leave to do some act while exemption is just one way of giving leave. The ratio of this judgment cannot be of any help to the Appellants in this case. The point raised by the Appellant in this Appeal is that the term deviation used in Regulation 116 of the Safety Regulations cannot be construed in a manner that it would include exemption within its ambit. The context and the analysis of this Court in M/s. Dhanrajamal Gobindram v. M/s. Shamji Kalidas & Co. (supra) with respect to the specific terms in the background of that context cannot be applied by this Court in the case at hand. The Appellants have themselves cited the judgment of this Court in RBI v. Peerless General Finance & Investment Co. Ltd. (supra) to contend the word deviation has to be interpreted by following the principle laid down in the said judgment which is as follows: -33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression Prize Chit in Srinivasa [(1980) 4 SCC 507 : (1981) 1 SCR 801 : 51 Com Cas 464] and we find no reason to depart from the Courts construction.Therefore, by applying the above principle to this case, reliance placed on the interpretation of Court in the cases of Glynn v. Margetson & Co. (supra) and M/s. Dhanrajamal Gobindram v. M/s. Shamji Kalidas & Co. (supra) for interpretation of Regulation 116 of the Safety Regulations is misplaced.22. In the facts of the present case, we are not in agreement with the Appellants that granting exemption to the erstwhile employees of the KSEB from possessing the qualifications provided in Regulations 6 and 7 is an impermissible exercise of power under Regulation 116 of the Safety Regulations. Prior to the 2010 Regulations, the Indian Electricity Rules, 1956 framed under Section 37 of the Indian Electricity Act, 1960 were in force. Rule 133 of the said Rules would show that State Governments/Central Government were empowered to grant exemption from the safety provisions contained therein. The power of exemption has been in existence even prior to Electricity Act. A perusal of the order dated 13.02.2019 would demonstrate that the State Government directed deviation from the implementation of qualifications prescribed under Regulations 6 and 7 of the Safety Regulations. Though the word exemption was not employed in the order dated 13.02.2019, the effect of the direction issued by the Government was to exempt the employees from the prescribed qualifications. In other words, Regulations 6 and 7 were relaxed in favour of the erstwhile employees. The width and amplitude of Regulation 116 cannot be restricted by interpreting the word deviation as having lesser scope than exemption. Deviation from the Regulations would amount to either exemption or relaxation. Therefore, we are in agreement with the Division Bench that the order dated 13.02.2019 cannot be said to have been issued beyond the power conferred by Regulation 116 of 2010 Regulations.Drawing from the interpretation of the relevant provisions as discussed above, promotion and other service conditions of the officers and employees transferred to KSEBL under the transfer scheme are protected under Section 131 and 133(2) of the Electricity Act in conjunction with the transfer scheme and the tripartite agreement. The explanation to Section 133 makes it clear that officers and employees referred to in the section are only those officers and employees of the Board on the date of transfer scheme, i.e. on 31.10.2013. By no stretch of imagination can this protection be extended to the employees who were engaged by KSEBL after 31.10.2013. The High Court was right in setting aside the order dated 13.02.2019 which permitted deviation from Regulations 6 and 7 to all appointments made till the date of issuance of order dated 13.02.2019, even after the transfer scheme dated 31.10.2013. By the impugned judgment, the High Court restricted the applicability of the order dated 13.02.2019 to such of those employees transferred from KSEB prior to 31.10.2013.As the exercise of power by the State Government in issuance of the order dated 13.02.2019 is well within its jurisdiction, grant of exemption in favour of erstwhile employees cannot be termed as arbitrary. However, the extension of the continuity to employees appointed after 31.10.2013 is not reasonable and only the transferred employees are entitled for protection of their service conditions. Therefore, we approve the findings recorded by the Division Bench of the High Court of Kerala.