Assistant Provident Fund Commissioner, Employees Provident Fund Organisation, Regional Office, Kottayam-686 001 v. Kerala State Human Rights Commission and N.D. Radhakrishnan Nair

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** # **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 15[TH] DAY OF MARCH 2023/24TH PHALGUNA, 1944 WP(C) NO. 20434 OF 2019`** ## **`PETITIONER:`** ``` ASSISTANT PROVIDENT FUND COMMISSIONER EMPLOYEES PROVIDENT FUND ORGANISATION, REGIONAL OFFICE, KOTTAYAM-686 001. ``` ``` BY ADV JOY THATTIL ITTOOP, STANDING COUNSEL ``` ## **`RESPONDENTS:`** ``` 1THE KERALA STATE HUMAN RIGHTS COMMISSION REPRESENTED BY ITS REGISTRAR, TURBO PLUS TOWERS, PMG JN., VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 033. ``` ``` 2N.D.RADHAKRISHNAN NAIR NEERANTHANATH VEEDU, CHENNAD P.O., POONJAR, KOTTAYAM-686 581. ``` ``` BY ADV SRI.GEORGEKUTTY MATHEW - R2 ``` ## **`OTHER PRESENT:`** ``` BHANU THILAK FOR PETITIONER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _**W.P(C).20434/2019**_ 2 ## J U D G M E N T Dated this the 15[th] day of March, 2023 ## S. Manikumar, CJ Instant writ petition is filed by the Assistant Provident Fund Commissioner, Kottayam, seeking for issuance of a writ of certiorari or any other appropriate writ, order or direction, quashing Exhibit P8 complaint filed by the 2[nd] respondent as HRMP No.9641/2018 before the Kerala State Human Rights Commission, 1[st] respondent, and Exhibit P10 order dated 10.06.2019 passed by it. 2. Short facts leading to filing of the writ petition are as under: 2.1. By Exhibit P1 judgment, exclusion of Primary Cooperative Societies from the purview of the EPF & MP Act, 1952, was upheld by this Hon'ble Court. Exhibit P1 judgment was upheld in appeal by Exhibit P2 judgment, replying upon Exhibit P3 judgment, but left it open to the employees of such Primary Co-operative Societies to opt between Employees Pension Scheme, 1995 under the EPF & MP Act, 1952, and the Kerala Cooperative Societies Employees Self Financing Pension Scheme, _**W.P(C).20434/2019**_ 3 1994, for pensionary benefits. Thereafter, by Exhibit P4 judgment, the option was taken away, and the Primary Cooperative Societies became excluded from the purview of the EPF & MP Act, 1952. Thus, the employees of Primary Cooperative Societies are eligible to pension only under the Kerala Co-operative Societies Employees Self Financing Pension Scheme, 1994. The petition filed against Exhibit P2 judgment is pending. 2.2. While so, the 2[nd] respondent filed Exhibit P8 complaint before the 1[st] respondent praying for pension from the petitioner, whereas the 2[nd] respondent was an employee of a Primary Co-operative Society excluded from the purview of the EPF & MP Act, 1952. The 1[st] respondent, despite having no jurisdiction in the matter pertaining to service benefits pending before this Hon'ble Court, passed Exhibit P10 order directing the petitioner to grant pension to the 2[nd] respondent and report before 30-07-2019. Exhibit P8 complaint is not maintainable before the 2[nd] respondent, and Exhibit P10 order has been passed without jurisdiction. 2.3. Under Regulation 17(f) of the Kerala State Human _**W.P(C).20434/2019**_ 4 Rights Commission (Procedure) Regulations 2001, complaints pertaining to civil disputes, service matters, labour or industrial disputes, are not maintainable before the 1[st] respondent. Further under Regulation 17(h) complaints in respect of pending matter are also not maintainable before the 1[st] respondent. By Exhibit P10 interim order the main relief sought has been granted by the 1[st] respondent. Hence, this Writ Petition to quash Exhibit P8 complaint and Exhibit P10 order dated 10.6.2019. 3. Before the Kerala State Human Rights Commission, the 2[nd] respondent herein, Mr. N.D Radhakrishnan Nair has filed HRMP No.9641/2018/KTM seeking to take steps for sanctioning pension from the EPF. 4. Considering the averments and the prayers sought for, Human Rights Commission has passed an order dated 10.06.2019, directing the Assistant Provident Fund Commissioner the petitioner herein, to immediately conclude the proceedings to sanction pension to the petitioner therein, so as to redress the grievance. 5. Challenging the correctness of the said order, the Assistant Provident Fund Commissioner, Kottayam, has filed the _**W.P(C).20434/2019**_ 5 instant writ petition, on the grounds, inter alia, that clause (f) of Regulation 17 of the Kerala State Human Rights Commission (Procedure) Regulations, 2001, clearly specifies that issues related to civil dispute, service matter, labour or industrial disputes are not maintainable before the Kerala State Human Rights Commission. Therefore, the Commission ought not to have considered the complaint preferred by the 2[nd] respondent, as the Regulation clearly specifies to dismiss such complaints in the _in limine_ itself. 6. He further contended that Exhibit-P8 complaint relating to service benefits is not maintainable before the 1[st] respondent, since the alleged grievance of the 2[nd] respondent does not fall within the ambit of human rights, as held by this Court in the judgment in W.P.(C) No.30411 of 2008 dated 31.01.2013, produced as Exhibit-P11. According to the petitioner, the Kerala Human Rights Commission does not have the jurisdiction to entertain Exbhibit-P8 complaint and pass Exhibit-P10 order. 7. He also contended that the direction issued in ExhibitP10 order by the Kerala Human Rights Commission is contrary to _**W.P(C).20434/2019**_ 6 the law declared by a Hon’ble Division Bench of this Court in Exhibit-P4 judgment dated 7.11.2016 in R.P. No.1162 of 2012 and connected cases. 8. Refuting the averments made in the writ petition and the reliefs sought for by the petitioner, 2[nd] respondent has filed a counter affidavit dated 30.09.2019, wherein it is contended as under: A. It is submitted that Meenachil East Urban Cooperative Bank Ltd., in which the 2[nd] respondent was working, comes under the Employees Provident Funds and Miscellaneous Provisions Act, 1952 and Employees’ Pension Scheme, 1995. This is upheld by this Court in Exhibit-P2 judgment. It is pertinent to note that in I.A. No.627/12 in W.A. No.512/12, this Court modified Ext.P2 judgment as ‘disposed of’ as per order dated 10.08.2012, as evident from ExhibitR2(a). It is also submitted that the petitioner has not challenged Exts.-R2 and R2(a) judgments, either by appealing or by revision petition so far. Therefore, this judgment has become final. B. It is further contended that the 2[nd] respondent is not personally aware of Exts.P5, P6 and P7 proceedings. But, it is learnt from the Bank that contributions for the pension scheme are regularly accepted by the petitioner for the entire employees of the Bank. That apart, it is also stated that the entire employees, including 2[nd] respondent, jointly opted for the Pension scheme of the petitioner. Hence, according to the 2[nd] respondent, it is clear that there does not exist ‘individual option’ of the employees of the Bank. C. It is further contended that the employer bank of the 2[nd] respondent viz., the Meenachil East Urban Co-operative Bank Ltd., Poonjar is a bank functioning with banking licence dated 3.4.1989 issued by the Reserve Bank of India and coming under the provisions of Banking Regulations Act, 1949, as evident from Ext.R2(b). The employees of the societies along are excluded from the purview of the pension scheme. The _**W.P(C).20434/2019**_ 7 employer of the 2[nd] respondent is a bank as evident from Ext.R2(b). That apart, petitioner has not challenged the inclusion of employees under this pension scheme. D. It is further submitted that the 2[nd] respondent filed Exhibit-P8 complaint stating that the petitioner is not implementing the directions contained in Exhibit-P2 judgment dated 13.07.2012 in W.A. No.512 of 2012 and other connected cases and that eligible pension is not being disbursed to the 2[nd] respondent. It is further stated in Ext.P8 complaint that the 2[nd] respondent is facing acute financial crises and having no other source of income to his family. The pension from the petitioner alone is the only means for the livelihood of the 2[nd] respondent and his family. E. It is further contended that petitioner conjoined with the proceedings before the 1[st] respondent, without any objection of jurisdiction. The petitioner filed Ext.P9 reply to Ext.P8 complaint. The objections raised in Ext.P9 are only that the 2[nd] respondent is not coming under the Pension Scheme of the petitioner. But, the issue regarding the entitlement of employees of the bank, including the 2[nd] respondent, for the pension scheme of the petitioner is well covered by Ext.P2 judgment, which categorically states that the respondent and other employees of the bank are coming under the purview of Employees Provident Fund Scheme, 1995. Ext.P2 judgment has become final. Petitioner has not raised any objection about the authority and jurisdiction of the 1[st] respondent to entertain the grievance of the 2[nd] respondent in Ext.P8 complaint. There is no whisper in Ext.P9 objection of the petitioner. Hence, the petitioner is not legally entitled to raise such an objection after passing final order by the 1[st] respondent. F. It is further submitted that Ext.P10 order issued by the 1[st] respondent is legally valid and comes under the provisions of Human Rights Commission Act, 1993 (hereinafter will be referred only as 'Act'). 'Human rights' is defined in Section 2(d) of the Act as "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 right of the 2[nd] respondent to get pension for the means of his living is part of the fundamental right guaranteed under Article 21 of the Constitution. The right of the 2[nd] respondent to get pension from the petitioner is declared in Ext.P2 judgment. The benefits declared in Ext.P2 are enforceable through Courts. Hence, the right of the 2[nd] respondent to get pension from the _**W.P(C).20434/2019**_ 8 petitioner is human rights which are enforceable by the 1[st] respondent also under the Act. G. It is further contended that the issue involved in Exts.P10 order and P11 judgment are different. Ext.P11 deals only with service conditions in employment which is not a human right and comes under Regulations 17(f) of the Kerala Human Rights Commission (Procedure) Regulations 2001. The issue involved in Ext. P10 is of the right of pension covered by Ext.P2 judgment, which is a human right comes under Section 2(d) of the Act. It is also submitted that the Kerala State Human Rights Commission (Procedure) Regulations, 2001 is issued by the 1[st] respondent itself under Section 10(2) r/w 29 of the Act. Since the regulation is issued by the Commission itself, the provisions in it cannot be treated as taking away of the powers and jurisdiction of the 1[st] respondent Commission granted by the Act. This is made clear by this Court in the judgment reported in 2014 (3) KLT 869. Therefore, Ext-P8 complaint, as well as Ext.P10 order, is legally maintainable. For the foregoing reasons, 2[nd] respondent prayed for dismissal of the writ petition. 9. Heard learned counsel for the parties and perused the pleadings and material on record. 10. On the aspect of jurisdiction of the Kerala State Human Rights Commission in entertaining a complaint regarding service matter, a Hon’ble Division Bench of this Court in **Malabar Cements Ltd. (M/s.) v. K. Baburajan and Others** [2019 (4) KHC 131], after considering clause (f) of Regulation 17 of the Kerala State Human Rights Commission (Procedure) Regulations, 2001, held thus: “18. At this juncture, we may take note of Regulation 17 of the Kerala State Human Rights Commission (Procedure) _**W.P(C).20434/2019**_ 9 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.P1judgment of this Court in the same matter between the same parties, which had attained finality.” ## 11. In R.P.No.1162 of 2012 and connected cases, vide order dated 07.11.2016, this court held thus: “It is brought to our notice by learned counsel appearing for the review petitioners that there is a slight difference on the factual aspects in the above batch of Review Petitions, as distinct from the batch of Review Petitions which was already disposed of, to the extent _**W.P(C).20434/2019**_ 10 - that these are cases concerned with Primary Co operative Societies are establishments stands already exempted from the provisions of Employees’ Pension Scheme of the EPF. In such cases, as held in the earlier batch of Review Petitions, question of individual option does not arose and the EPF Organization is bound to transfer the amounts standing credit of individual employees to the Self Financing Pension Scheme formulated by the State Government. The matter is clarified to the above extent.” 12. 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 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; _**W.P(C).20434/2019**_ 11 (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 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 3[rd] respondent dated 3.10.2019 on the files of the Kerala State Human Rights Commission is dismissed.” ## 13. Reading of Exhibit P10 order dated 10.6.2019 indicates _**W.P(C).20434/2019**_ 12 that, by way of the interim order, the main relief sought for in the complaint has been granted. Notwithstanding the jurisdiction of Kerala State Human Rights Commission in entertaining a complaint, it is well settled that interim order should not be issued in the guise of the main relief itself. 14. On the said aspect, 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 _**W.P(C).20434/2019**_ 13 the Orissa High Court under appeal cannot be upheld." ## (ii) In **Deoraj v. State of Maharashtra** [AIR 2004 SC 1975], the Hon'ble Supreme Court, at paragraph 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 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 _**W.P(C).20434/2019**_ 14 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. 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 _**W.P(C).20434/2019**_ 15 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." Giving due consideration to the statutory provisions and in the light of the above discussion and decisions considered, we are of the view that the order in HRMP No. 9641/2018/KTM dated 10.6.2019, is liable to be set aside. Accordingly, set aside. Writ petition is allowed. Pending interlocutory applications, if any, shall stand closed. Sd/S. Manikumar, Chief Justice Sd/Murali Purushothaman, Judge sou. _**W.P(C).20434/2019**_ 16 ## **`APPENDIX OF WP(C) 20434/2019`** ## `PETITIONER EXHIBITS` ``` EXHIBIT P1TRUE COPY OF THE JUDGMENT DATED 7.2.2012 IN WPC NO.21637/2009 ON THE FILE OF THIS HON'BLE COURT. ``` - `EXHIBIT P2 TRUE COPY OF JUDGMENT DATED 13.7.2012 IN W.A.NO.512/2012 ON THE FILE OF THIS HON'BLE COURT.` - `EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 27.6.2012 IN W.A.NO.1019/2012 ON THE FILE OF THIS HON'BLE COURT.` - `EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 7.11.2016 IN R.P.NO.45/2013 ON THE FILE OF THIS HON'BLE COURT.` - `EXHIBIT P5 TRUE COPY OF THE LETTER DATED 3.10.2018 ISSUED BY EPFO TO THE 2[ND] RESPONDENT'S ESTABLISHMENT.` - `EXHIBIT P6 TRUE COPY OF THE LETTER DATED 29.10.2018 ISSUED BY THE 2ND RESPONDENT'S ESTABLISHMENT TO EPFO, KOTTAYAM.` - `EXHIBIT P7 TRUE COPY OF THE LETTER DATED 29.11.2018, ISSUED BY THE EPFO, KOTTAYAM TO THE 2[ND] RESPONDENT'S ESTABLISHMENT.` - `EXHIBIT P8 TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT IN HRMP NO.9641/2018 BEFORE THE IST RESPONDENT, ALONG WITH ITS TRUE ENGLISH TRANSLATION.` - `EXHIBIT P9 TRUE COPY OF THE REPLY FILED BY THE PETITIONER TO EXT.P8/COMPLAINANT.` ``` EXHIBIT P10TRUE COPY OF THE ORDER DATED 10.6.2019, PASSED BY THE IST RESPONDENT IN EXT.P8/COMPLAINT, ALONG WITH ITS TRUE ENGLISH-TRANSLATION. ``` _**W.P(C).20434/2019**_ 17 - `EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 31.1.2013 IN WPC NO.30411/2008 ON THE FILE OF THIS HON'BLE COURT.` ## `RESPONDENT'S EXHIBITS` ``` EXHIBIT R2(a)TRUE COPY OF THE ORDER DATED 10.8.2012 I.A.627/12 IN WRIT APPEAL NO.512/12 ``` - `EXHIBIT R2(b) TRUE COPY OF THE LICENCE DATED 3.4.1989 ISSUED BY THE RESERVE BANK OF INDIA` - `EXHIBIT R2(c) TRUE COPY OF THE ORDER DATED 27.5.2019 ISSUED BY THE COMMISSIONER OF REGIONAL PROVIDENT FUND ORGANISATION AT ERNAKULAM` - `EXHIBIT R2(d) TRUE COPY OF THE STATEMENT OF ACCOUNT OF REMISSION OF PENSION CONTRIBUTION AND ADMINISTRATIVE CHARGES FROM 1.9.2018 TO 7.6.2019 BY THE BANK TO THE PETITIONER` - `EXHIBIT R2(e) TRUE COPY OF THE JUDGMENT DATED` - `25.2.2019IN W.P(C).NO.32758/2016 OF THIS HON’BLE COURT`