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State Government Can Give Exemptions or Relaxations to Central Electricity Authority (Measures Relating to Safety and Electricity Supply) Regulations 2010: Supreme Court

Team SoOLEGAL 21 Feb 2022 6:55pm

State Government Can Give Exemptions or Relaxations to Central Electricity Authority (Measures Relating to Safety and Electricity Supply) Regulations 2010: Supreme Court

NEW DELHI: The Supreme Court has maintained a Kerala Government Order dated 13.02.2019, which allowed exemptions to certain current Board employees from the qualifications under the Central Electricity Authority (Measures pertaining to Safety and Electric Supply) Regulations, 2010.


However, the Supreme Court affirmed the Kerala High Court's decision that the aforementioned Government Order can only be applied to current workers and not to those hired after October 31, 2013.


The Supreme Court ruled that the term "deviation" in Regulation 116 of the Central Electricity Authority (Measures Relating to Safety and Electric Supply) Regulations, 2010, which allows the Central and State Governments to deviate on matters covered by the Regulation of 2010, amounted to "exemption" or "relaxation."


A Bench of Justices L. Nageswara Rao and B.R. Gavai dismissed an appeal filed against a Division Bench of the Kerala High Court's judgment, which affirmed the legality of Regulation 116 of the Central Electricity Authority (Measures Relating to Safety and Electric Supply) Regulations, 2010. ("Regulations").


“116. Deviations –


(1)   The Central Government or the State Government, as the case may be, by order in writing, allow deviations in respect of matters referred in these regulations except regulation 30.


(2)   The electrical inspector or the inspector of mines may, by order in writing, allow deviations in respect of matters referred in regulations 12 to 17, 28, 35(2)(3) and (5), 36(3), 37(1) to (iv), 41(xii), 43, 44(2), 46, 52 to 54, 57 to 61, 65, 72, 74, 78 to 91, 102, 107(6), (8) and (10) and 114.


Explanation – every order allowing the deviations by the electrical inspector or the inspector of Mines under sub – regulation (2) shall  be placed before the central or state government which may disallow or revise such deviations.”


Background
On October 31, 2013, the Government of Kerala notified a transfer scheme vesting in Kerala State Electricity Board Limited ("KSEBL"), a company fully owned by the Government of Kerala, all functions, properties, interests, rights, obligations, and liabilities that were with Kerala State Electricity Board ("KSEB"). A tripartite agreement was reached between the State of Kerala, KSEBL, and Unions and Associations of KSEB workers to ensure that the existing regulations continue to govern the terms and conditions of service.


Exemption from obtaining qualifications stated under Regulations 6 and 7 of the Central Electricity Authority (Measures pertaining to Safety and Electric Supply) Regulations, 2010 ("Regulations") was granted to the former workers on 13.02.2019 by a Government Order ("GO").


A Writ Petition was filed in the Kerala High Court contesting the constitutionality of Regulation 116 of the Regulations. The petitioner requested a determination that the State lacked the authority to vary from the criteria outlined in Regulations 6 and 7. The 13.02.2019 GO was also challenged as arbitrary, unlawful, irrational, and without jurisdiction. The order was issued by the Single Judge in favor of the writ petitioner.


The Division Bench ruled in the appeal that Regulation 116 was neither excess vires the Central Electricity Authority under the Electricity Act of 2003 ("Act") nor plainly arbitrary.


It was of the opinion that exemption from the applicability of Regulations 6 and 7 could only have been provided to those engaged with KSEBL on the date of the transfer scheme's formation, and that those employed after 31.10.2013 were not entitled to such an exemption. As a result, the GO dated 13.02.2019 was set aside to the degree that it allowed immunity even to personnel hired after October 31, 2013.


Contentions Raised by the Appellants
Mr. V. Chitambaresh, Senior Advocate, arguing on behalf of some of the appellants, claimed that in light of Regulation 116, which authorised departure from the Regulations, the Government could not have granted exemption since "deviation" cannot be understood as "exemption." He cited R.B.I. v. Peerless General Finance And Investment Co. Ltd. (1987) 1 SCC 424, M/s. Dhanrajamal Gobindram v. M/s. Shamji Kalidas And Co. (1961) 2 SCR 1020, and Glynn v. Margetson And Co. (1893) A.C. 351.


Mr. K. Rajeev, appearing for the other appellants, contended that the transfer scheme was drafted in 2013, after the Safety Regulations went into effect in 2010, and that the Single Judge of the High Court correctly held that clause 2(c) of the tripartite agreement was in violation of the Electricity Act, 2003.


Contentions Raised by the Respondents
Ms. Aishwarya Bhati, standing on behalf of the Central Electricity Authority, said that the authority had no involvement in the appeals because the appellants had not made any representations about the viability of Regulation 116 before the Apex Court. She claimed that, while the aforementioned rule allows for deviation, lump amount exemption cannot be given.


Mr. P.V. Surendranath, Senior Advocate, arguing on behalf of the State of Kerala, claimed that Regulation 116 allows for departure in issues covered by the Regulation of 2010. He claimed that subordinate law cannot be tampered with unless it is plainly arbitrary, citing a catena of Apex Court precedents.


Mr. P.V. Dinesh, testifying on behalf of KSEBL, said that the relief offered to the former workers falls within the purview of Regulation 116 since the benefit extended to such employees cannot be deemed a lump sum exemption. He informed the Court that the track record of KSEBL employees was flawless, and that the number of electrical accidents documented in Kerala was far lower than in other states.


Mr. P.N. Ravindran, Senior Advocate, argued that reversing the Division Bench's decision would be detrimental to the interests of 17,367 employees. He also said that divergence is the same as exemption.


Mr. M.T. George and Mr. Venugopalan Nair, advocates, emphasised that Regulations 6 and 7 referred to safety circumstances rather than service conditions of KSEBL personnel.


Analysis of the Supreme Court
The Court noted that Regulation 133 of the Indian Electricity Rules, 1956, which was in effect prior to the Regulation of 2010, and was framed under Section 37 of the Indian Electricity Act, 1960, also empowered both the State and Central Governments to grant "exemption" from the safety provisions contained in it. The Court determined that the G.O. dated 13.02.2019 ordered divergence from the application of the qualification stated in Regulations 6 and 7, and that 'deviation' might amount to either exemption or relaxation. As a result, neither the order was supra vires Regulation 116 nor was it arbitrary. The Court noted that Sections 131 and 133(2) of the Electricity Act, as well as the transfer plan and tripartite agreement, all provided for the transfer of officials and workers to KSEBL, as well as the terms and conditions of their service upon transfer. According to the Section 133 explanation, the officials and employees referred to in the provision were individuals who were engaged with KSEBL on October 31, 2013, the date of the transfer scheme. In light of this, the Apex Court affirmed the High Court's order to strike aside GO dated 13.02.2019 to the extent that it allowed exemption even to workers who came after 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 favor 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,” the Court held.




Tagged: Supreme   Court   Order   Kerala   Government   Electricity   Order   Safety   Board   Employees   Regulations   Act   2010   Center   State   High   Court   Authority   Justices   Nageswara   Rao   Gavai   KSEB   writ   petition   petitioner   2003   KSEBL  
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