Kerala State Electricity Board v. W.P.(C) No.30561/2012 (son of a former Part-Time Contingent Employee) — WA No.1716/2015

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 01ST DAY OF JULY 2020 / 10TH ASHADHA, 1942** **WA.No.1716 OF 2015** **AGAINST THE ORDER/JUDGMENT IN WPC 30561/2012 DATED 11-03-2015 OF HIGH COURT OF KERALA** ## **APPELLANT/S:** **1 KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VYDUTHI BHAVAN PATTOM, THIRUVANANTHAPURAM-695 004. 2 CHIEF ENGINEER HRM KERALA STATE ELECTRICITY BOARD, VYDUTHI BHAVAN PATTOM, THIRUVANANTHAPURAM-695 004. BY ADVS. SRI.K.S.ANIL, SC, KSEB SRI.RAJU JOSEPH (SR.) SRI.JOSEPH ANTONY SRI.K.T.PAULOSE, SC, KSEB : BAIJU CHANDRAN KORMALA PUTHEN PURA HOUSE, THRIKARIYOOR P.O. KOTHAMANGALAM. 686691** ## **RESPONDENT/S:** ## **OTHER PRESENT:** **DR. GEORGE ABRAHAM- FOR RESPONDENT** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15-06-2020, THE COURT ON 01-07-2020 DELIVERED THE FOLLOWING:** W.A.No.1716/2015 2 ## **C.R.** ## **JUDGMENT** ## **Dated this the 1[st] day of July 2020** ## _**Gopinath, J.**_ This Writ Appeal is filed by the respondents in W.P.(C)No.30561/2012. That Writ Petition was filed by the son of a former Part-Time Contingent Employee who died while in service of the Kerala State Electricity Board Limited (hereinafter referred to as ‘KSEBL’), on 21.3.2011, claiming compassionate appointment. The claim of the writ petitioner was rejected on the ground that only the dependants of the Part-Time Contingent Employees, who die before attaining the age of 60 years are eligible to be considered for compassionate appointment in terms of the industrial settlement entered into between the Kerala State Electricity Board and its employees, in 2007. 2. The writ petitioner contended, _inter alia,_ that the provisions of the long term settlement were in direct conflict with Statutory Regulations framed by the erstwhile Kerala State Electricity Board in the exercise of the powers conferred by Section 79 r/w. Section 15 of the Electricity (Supply) Act, 1948. These regulations, which are produced as Ext.P2 along with the writ petition clearly did not place W.A.No.1716/2015 3 an embargo on the dependants of Part-Time Contingent Employees, who died after attaining the age of 60 years from claiming the benefit of the dying-in-harness scheme. 3. A learned Single Judge allowed the writ petition following the judgment in _**Rita Bella**_ v. _**State of Kerala**_ [2015 (1) KLT 691], wherein it was held that the provisions of the settlement cannot override the Statutory Regulations in determining the eligibility for appointment of dependants under the dying-in-harness Scheme. 4. We have heard Sri. Raju Joseph, learned Senior Counsel assisted by Sri. Joseph Antony, learned counsel appearing for the appellant, KSEBL, and Dr. George Abraham, learned counsel appearing for the writ petitioner. Sri. Raju Joseph would contend that the writ petitioner’s mother died on 21.3.2011, at the age of 66. He would contend that the question of applying the law laid down in _**Rita Bella's**_ case (supra) does not arise on account of the fact that the statutory scheme relied upon by the petitioner (Ext.P2) is presently not in force on account of the repeal provision in Section 185 of the Electricity Act. 2003. He contends that the Supreme Court in its recent judgment in _**Santhosh .N.C.**_ v. _**State of Karnataka and others**_ reported in 2020 (2) KHC 371 (SC) has held that insofar as compassionate appointment is concerned, only the rules prevailing on the date of consideration of the application will apply. According to Sri. Raju Joseph, since writ petitioner’s mother, died on 21.3.2011, the question of applying Ext.P2 regulation, which was framed under the W.A.No.1716/2015 4 repealed provisions of the Electricity (Supply) Act, 1948, does not arise as on the relevant date the provisions of the Electricity (Supply) Act, 1948 stood repealed by the provisions of the Electricity Act of 2003. He would contend that unless the provisions of subordinate legislation framed under the provisions of the repealed enactment are specifically saved by the repealing Act, the subordinate legislation cannot have any legal effect after repeal. Mr.Raju Joseph refers to _**State of U.P. v. Hirendra Pal Singh**_ , (2011) 5 SCC 305 and in particular to paragraph 22 of that judgment which reads as follows:- “ _It is a settled legal proposition that whenever an Act is repealed, it must be considered as if it had never existed. The object of repeal is to obliterate the Act from the statutory books, except for certain purposes as provided under Section 6 of the General Clauses Act, 1897. Repeal is not a matter of mere form but is of substance. Therefore, on repeal, the earlier provisions stand obliterated /abrogated /wiped out wholly i.e. pro tanto repeal (vide Dagi Ram Pindi Lall v. Trilok Chand Jain [(1992) 2 SCC 13 : AIR 1992 SC 990] ; Gajraj Singh v. STAT [(1997) 1 SCC 650 : AIR 1997 SC 412] ; Property Owners' Assn. v. State of Maharashtra [(2001) 4 SCC 455 : AIR 2001 SC 1668] and Mohan Raj v. Dimbeswari Saikia [(2007) 15 SCC 115 : (2010) 2 SCC (Cri) 782 : AIR 2007 SC 232] ).”_ 5. Dr. George Abraham, learned counsel for the writ petitioner would contend that the prohibition contained in Ext.R2(a) settlement restricting the right of dependants of Part-Time Contingent Employees from seeking employment under the dying-in-harness Scheme would not apply to the case of the writ petitioner on account of the fact that the said settlement had been replaced by a fresh W.A.No.1716/2015 5 settlement on 28.2.2011 (Ext.P7 in the writ petition), wherein there is no such prohibition. He would state that on the date of consideration of the application, which is 29.5.2012, R2(a) settlement was not in force and therefore that the judgment of the Supreme Court in _**Santhosh. N.C (supra)**_ would, in fact, establish that the case of the writ petitioner was liable to be considered, dehors the prohibition contained in Ext.R2(a) settlement. He would refer to Section 3(51) of the General Clauses Act, 1897 to contend that Ext.P2 regulations would continue to apply as Section 3(51) defines ‘Rule’ to include ‘Regulation’ and ‘Rules’ are saved under sub-section (2) of Section 185. He would also state that it is clear from a reading of subsection (5) of Section 185 that the operation of Section 6 of the General Clauses Act is clearly intended notwithstanding anything in sub-section (2) of Section 185. He would also contend that the decision of the learned Single Judge in _**Rita Bella's case (supra)**_ has been confirmed by a Division Bench of this Court through judgment dated 28.7.2015 in W.A.No.1100/2015 to which one of us, (A.M Shaffique, J.) was a party. 6. We have bestowed anxious attention to the contentions raised by both sides. At the outset, we must notice that the effect of repeal of the Electricity (Supply) Act, 1948 on Ext.P2 regulations, which are framed under Section 79 of that Act, was not considered by this Court while deciding _**Rita Bella's case (supra).**_ However, since that contention is taken before us and since it involves a W.A.No.1716/2015 6 question of law, we are required to examine that question notwithstanding the fact that the judgment of the learned Single Judge in _**Rita Bella's case (supra)**_ has been upheld by judgment dated 28.7.2015 in W.A.No.1100/2015. 7. Section 185 of the Electricity Act, 2003 is the repeal and saving provision. It is settled law that repeal of the Principal Act will result in the repeal of subordinate legislation framed under the provisions of the repealed enactment unless the same was specifically saved by the repeal and saving clause. We cannot, in Section 185, see any saving clause which protects Ext.P2 Regulation or gives life to Ext.P2 regulation dehors the repeal of Electricity (Supply) Act, 1948. Section 185(2) (a) of the Electricity Act, 2003 reads as follows:- ## “ _**Section 185. (Repeal and saving):** ---_ _(1) xxx xxx_ _(2) Notwithstanding such repeal, -_ _(a)anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any license, permission, authorization or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act.”_ The provisions of sub-section (2), obviously cannot apply to save Ext.P.2 Regulations, in the manner suggested by the learned counsel for the Writ Petitioner as, obviously, the said provision can apply only to past actions under any of the repealed enactments. A reading of W.A.No.1716/2015 7 Section 185(2)(a), suggests that things, which have already been done will be saved insofar as it is not inconsistent with the provisions of the Electricity Act, 2003. 8. We accept the contention of the learned counsel for the writ petitioner that there is nothing contrary to the provisions contained in Ext.P2 in the Electricity Act, 2003. However, the lack of any inconsistency with the provisions of the 2003 Act cannot offer any protection, insofar as the writ petitioner is concerned, on account of the fact that it is not his case that any action had been taken in terms of Ext.P2 regulation prior to the repeal of the Electricity (Supply) Act, 1948. In fact, as already noticed, the mother of the writ petitioner under whom he claims appointment under the dying-inharness Scheme passed away only on 21.3.2011 on which date Ext.P2 regulation was clearly not in force on account of the repeal provision in Section 185(1). Our attention is not drawn to any statutory regulation framed under the provisions of the Electricity Act, 2003 replacing Ext.P2 regulation. In the absence of any statutory regulation, the provisions of the long term settlement will apply. The learned counsel for the Writ Petitioner would then contend that Section 185(5) saves the application of Section 6 of the General - Clauses Act, 1897. Sub-section (5) of Section 185 reads as under: “ _(5) Save as otherwise provided in sub-section (2), the mention of particular matters in that section, shall not be held to prejudice or affect the general application of section 6_ W.A.No.1716/2015 8 _of the General Clauses Act, 1897, with regard to the effect of repeals._ ” Sub-section (5) of Section 185, on our reading, only makes it clear that the specific mention & saving of certain enumerated provisions/rules in Sub-section (2) does did not mean that the effect of Section 6 of the General Clauses Act, 1897 was inapplicable in respect of provisions not so enumerated. In _**Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co.**_ **, (2001) 8 SCC 397,** it was held:- _**25.** The opening words of Section 6 specify the field over which it is operative. It is operative over all the enactments under the General Clauses Act, Central Act or regulations made after the commencement of the General Clauses Act. It also clarifies in case of repeal of any provision under the aforesaid Act or regulation, unless a different intention appears from such repeal, it would have no effect over the matters covered in its clauses viz. (a) to (e)._ _**It clearly**_ _**specifies that the repeal shall not** revive anything not in force or in existence or_ _**affect the previous operation of any enactment so repealed or anything duly done or suffered or affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed statute** , affect any penalty, forfeiture or punishment incurred in respect of any offence committed under the repealed statute and also does not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid. Thus the central theme which spells out is that any investigation or legal proceeding pending may be continued and enforced as if the repealing Act or regulation had not come into force._ _**26.** As a general rule, in view of Section 6, the repeal of a statute, which is not retrospective in operation, does not prima facie affect the pending proceedings which may be continued as if the repealed enactment were still in force. In other words, such repeal does not affect the pending cases_ W.A.No.1716/2015 9 _which would continue to be concluded as if the enactment has not been repealed. In fact when a lis commences, all rights and obligations of the parties get crystallised on that date. The mandate of Section 6 of the General Clauses Act is simply to leave the pending proceedings unaffected which commenced under the unrepealed provisions unless contrary intention is expressed._ _**We find clause (c) of Section 6, refers the words “any right, privilege, obligation … acquired or accrued” under the repealed statute would not be affected by the repealing statute. We may hasten to clarify here, mere existence of a right not being “acquired” or “accrued” on the date of the repeal would not get protection of Section 6 of the General Clauses Act.**_ (Emphasis is ours) We are clear in our minds that the provisions of Section 6 of the General Clauses Act, 1897 cannot come to the aid of the writ petitioner. 9. The contention of the Learned Counsel for the Writ Petitioner that the terms of Ext R 2(a) settlement are no longer in force also cannot be accepted for the reason that even if we were to hold so, that, by itself, will not revive Ext.P.2. On the repeal of the parent statute (here the Electricity (Supply) Act, 1948), any subordinate legislation framed thereunder would also stand repealed unless, of course, they were specifically saved under the repeal and savings clause. In _**Air India v. Union of India and Others**_ [(1995) 4 SCC 734], the Supreme Court held as under: _“8. In our view, if subordinate legislation is to survive the repeal of its parent statute, the repealing statute must say so in so many words and by mentioning the title of the subordinate legislation. We do not think that there is room for implying anything in this behalf.”_ W.A.No.1716/2015 10 Therefore the contention raised with reference to Section 3(51) of the General Clauses Act, 1897 also cannot be accepted. 10. We do not think that it is necessary to refer this case for the consideration of a larger bench, for though _**Rita Bella**_ (supra) was affirmed by a Division Bench of this Court the contention regarding the effect of Ext.P.2 Regulations upon repeal of the Electricity (Supply) Act, 1948 was never raised or considered in that case. In the light of our finding that Ext.P.2 Regulations are no longer in force, we allow this appeal by setting aside the judgment of the learned Single Judge and holding that the right of the 1st respondent (if any) can be considered only in terms of the relevant provisions of the industrial settlement in force and not in accordance with the provisions of Ext.P2 Regulations. sd/- ## **A.M. SHAFFIQUE, JUDGE** sd/- ## **GOPINATH. P., JUDGE** acd W.A.No.1716/2015 11 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE I True copy of the notification amending 1985 regulations.**