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1975 DIGILAW 293 (KER)

Mary v. Kerala State Electricity Board

1975-11-05

P.GOVINDAN NAIR, T.K.THOMMEN

body1975
JUDGMENT P. Govindan Nair, C.J. 1. All the appellants in this batch of writ appeals were the petitioners in the original petitions that were dismissed by a learned Single Judge of this court by the judgment under appeal and they are employees of the Kerala State Electricity Board, for short the Board. The appellants who were originally functioning as junior assistants did not possess the test qualification prescribed by Ext. P1 order passed by the Board for promotion as senior assistants. They were however clamouring for promotion. This gave rise to a dispute and that dispute was settled by an agreement that provided that the appellants would be exempted from the test qualification for a period of two years and that they would be promoted in the meantime. On the terms of this settlement they were promoted on the basis of orders similar to Ext. P-3, dated 24th August 1970 produced in O.P. No. 3442 of 1975, Writ Appeal No. 375 of 1975. These promotion orders provided that the promotions were provisional that the promoter will have no right to the post to which they were promoted and that they would be reverted in case they did not pass the test within the period of exemption of two years. The appellants did not pass the tests within the period but they were allowed to continue as senior assistants for a few more years. Ultimately it was decided to revert them. It was this decision that was challenged by the applicants under Article 226 of the Con­stitution. The main contention raised was that the prescrip­tion of conditions of service by Ext. P-1 was invalid and that those conditions have no effect and were devoid of any force; for the only way conditions of service could be laid down was by making regulations as provided by section 79 (c) of the Electricity (Supply) Act, 1948, hereafter referred to as the Supply Act. This contention was negatived and the petitions were dismissed. The same contention was repeated before us in these appeals. 2. Section 79 of the Supply Act is in these terms:— “ 79. This contention was negatived and the petitions were dismissed. The same contention was repeated before us in these appeals. 2. Section 79 of the Supply Act is in these terms:— “ 79. Power to make regulations.—The Board may make regulations not inconsistent with this Act and the rules made thereunder to provide for all or any of the following matters, namely:-— (�°) the administration of the funds and other property of the Board, and the maintenance of its accounts; (b) summoning and holding of meetings of the Board, the times and places at which such meetings shall be held, the conduct of business thereat and the number of members necessary to constitute a quorum; (c) the duties of officers and servants of the Board, and their salaries, allowances and other conditions of service; (d) all matters necessary or expedient for regulating the opera­tions of the Board under section 20; (e) the making of advances to licensees by the Board under section 23 and the manner of repayment of such advances; (f) the making of contributions by the Board under section 24; (g) the procedure to be followed by the Board in inviting, consi­dering and accepting tenders; (h) principles governing the fixing of Grid Tariffs; (i) principles governing the making of arrangements with licensees under section 47; (j) principles governing the supply of electricity by the Board to persons other than licensees under section 49; (k) any other matter arising out of the Board’s functions under this Act for which it is necessary or expedient to make regulations: Provided that the regulations under clauses (a) and (d) shall be made only with the previous approval of the State Government and regulations under clauses (h) and (i) shall be made with the concurrence of the Authority.� 3. It was emphasised that the Board constituted under the Act can exercise only such functions and powers as have been statutorily conferred on the Board and being a statutory authority it must trace its powers and functions to those discernible in the Act, the rules or the bye-laws framed under the Act and in so far as Ext. P-1 has not been framed as regulations under section 79 (c) it has no effect; not only that it has no effect but that it was invalid. Counsel even submitted that it was illegal. P-1 has not been framed as regulations under section 79 (c) it has no effect; not only that it has no effect but that it was invalid. Counsel even submitted that it was illegal. It was therefore submitted that no consequence would follow by non-fulfilment of the conditions imposed by Ext. P-1. 4. The words “shall� would or “must� in a statute are ordinarily mandatory and the word “may� directory. No doubt the words are often used by the legislature inter-changeably disregarding their literal meaning makes it necessary for courts to resort to construction in order to discover the real intention of the legislature. In so construing it would be necessary to start with a presumption that the legislature intended to use the words in their usual and natural meaning. If such a meaning, however, leads to absurdity or great inconvenience or for some other reason is clearly, contrary to the obvious intention of the legislature, the words which are ordinarily mandatory in their nature will be construed as directory, and vice-versa. Yet the construction of mandatory words as directory and directory words as mandatory should not be lightly adopted. The opposite meaning must be unequivocally evidenced before it is accepted as the true meaning (see Crawford Statutory Construction at page 519 at 522). So the Supreme Court ruled that where the obvious intent of the legislature was that a surrender deed must be executed in the manner provided by the statute, a surrender deed executed in any other manner would not be effective (see A.I.R. 1975 S.C. 915). The same view has been taken by the Supreme Court in the earlier decisions, referred to in para 25 of the judg­ment in Ramachandra Keshav Adke (Dead) by Lrs. v. Govind Joti Chavare and others A.I.R. 1975 S.C. 915 and by the Judicial Committee in Nazir Ahmed v. Emperor A.I.R. 1936 P.C. 253 also referred to by the Supreme Court in the same judgment. The principle of these decisions seems to be that “the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other� (Maxwell on Interpretation of Statutes., Eleventh Edition at pp. 362-363). 5. The principle of these decisions seems to be that “the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other� (Maxwell on Interpretation of Statutes., Eleventh Edition at pp. 362-363). 5. Applying the above principles we will have to construe the provision in section 79 (c) of the Supply Act in the light of the other relevant provision in the statute bearing in mind the aim and object of the statute. Two questions would then arise; whether the language of section 79 (c) cast an obligation on the Board to make regulations laying down service conditions. If the wording of the section would arise whether the section read in the context of the Act and the other provisions therein makes it obligatory to lay down the service conditions by regulations as otherwise the aim and object of the statute would be defeated. 6. The first question is easily answered for it is clear that the wording of the section is in its nature only directory. “Statutes passed for the purpose of enabling something to be done are usually expressed in permissive language, that is to say, it is enacted that ‘it shall be lawful,’ etc., or that ‘such-and-such a thing may be done.’ ‘Prima facie, these words import a discretion, and they must be construed as discretionary unless there be anything in the subject-matter to which they are applied, or in any other part of the statute, to show that they are meant to be imperative’.� (Craies on Statute Laws Seventh Edn. at p. 284). Apart from this, the use of the words “may make regula­tions for all or any of the following matters� in section 79 also indicates that the word ‘may’ is used in the directory sense. If the word ‘shall’ is substituted for the word ‘may’ in the section the section would become meaningless. 7. Passing on to the second question; is there then anything in the subject-matter to which they (the words) are applied or in any other part of the statute to show that they are meant to be imperative. If the word ‘shall’ is substituted for the word ‘may’ in the section the section would become meaningless. 7. Passing on to the second question; is there then anything in the subject-matter to which they (the words) are applied or in any other part of the statute to show that they are meant to be imperative. The subject-matter to which the word ‘may’ is applied is in regard to the making of regulations pertaining to duties of officers and servants their salaries and allowances and other conditions of service. Ordinarily every employer will have the right to lay down service conditions. Whether a statutory body would have the right to employ officers and servants would depend on the provisions of the statute. In the Supply Act section 15 reads as follows: “The Board may appoint a Secretary and such other officers and servants as may be required to enable the Board to carry out its fun­ctions under this Act: Provided that the appointment of the Secretary shall be subject to the approval of the State Government.� This gives specifically the power to appoint officers and servants as may be required. This power by necessary implication carries with it the power to lay down the service conditions of those appointed; for there cannot be any appointment without defining duties and salary and allo­wances, two of the matters stated in section 79(c). It would be necessary often to state in the appointment order itself other service conditions. The subject-matter to which the word ‘may’ in section 79(c) is to be applied as well as the provision in section 15 of the Supply Act not only do not militate against ‘may’ being read as directory but indicate that it would be proper to give the word that sense. The other provisions in the statute indicate that the main object and aim of the Supply Act is to promote the co-ordinated development of the generation, supply and distribution of electricity within the State in the most efficient and economical manner (section 18 of the Supply Act) and the general duty of doing so is cast upon the Board. There is nothing in the aim and object of the statute that compels us or even persuades us to take the view that ‘may’ in section 79 of the Supply Act must be understood in a man­datory sense. 8. There is nothing in the aim and object of the statute that compels us or even persuades us to take the view that ‘may’ in section 79 of the Supply Act must be understood in a man­datory sense. 8. It was suggested that appointments envisaged by section 15 of the Supply Act could be made only after regula­tions were made under section 79(c). There is nothing to indicate that this should be so. On the other hand, a reading of sections 20, 23, 24, 47 and 49 along with sub­sections (d), (e), (f), (i) and (j) of section 79 indicates that the legislature wherever it wanted the power conferred by the statute to be exercised “in accordance with any regu­lations made in this behalf (section 20) or “subject to any regulations made in this behalf� (sections 23, 24 and 47) or “subject to regulations, if any, made in this behalf� (section 49) specifically stated so unlike in the case of the power of appointment conferred by section 15. We need not tarry to consider in these cases, for the question does not arise, whether the provisions in sections 20, 23, 24, 47 and 49 posit that the powers conferred by these sections on the Board could be exercised only after regulations had been made. Suffice it to say that we find nothing in the statute to-support the contention that appointment could be made only after making regulations regarding service conditions. 9. Nor are we, as indicated earlier, impressed by the arguments that service conditions can be laid down only by regulations made under section 19(c). We see enough power arising by necessary implication from the power conferred by section 15 to appoint, to lay down service conditions without framing regulations under section 79 (c) but by indicating the service conditions in the orders of appoint­ment or by separate orders. The power to administer by appointment of necessary officers and servants as may be required to enable the Board to carry out its functions carries with it the power to specify service conditions. To make regulations under section 79(c) is only an enabling provision as the learned Judge in the judgment under appeal called it. The power to administer by appointment of necessary officers and servants as may be required to enable the Board to carry out its functions carries with it the power to specify service conditions. To make regulations under section 79(c) is only an enabling provision as the learned Judge in the judgment under appeal called it. We are fortified in this conclusion by the view taken by the Supreme Court in I. Cajee v. U. Jormanik Siam A.I.R. 1961 S.C. 276 while con­struing paras 2(4) and 3(1)(g) of the Sixth Schedule to the Constitution. The following is the relevant passage. “It is true that where executive power impinges upon the rights of citizens it will have to be backed by an appropriate law; but where executive power is concerned only with the personnel of the adminis­tration it is not necessary—even though it may be desirable—that there must be laws, rules or regulations governing the appointment of those who would carry on the administration under the control of the District Council. The Sixth Schedule vested the administration of the autonomous districts in the Governor during the transitional period and thereafter in the District Council. The administration could only be carried on by officers like the Siem or Chief and others below him, and it seems to us quite clear, if the administration was to be carried on, as it must, that the Governor in the first instance and the District Councils after they came into existence, would have power by virtue of the administration being vested in them to appoint officers and others to carry on the administration. Further once the power of appoint­ment falls within the power of administration of the district the power of removal of officers and others so appointed would necessarily follow as a corollary. The constitution could not have intended that all administration in the autonomous districts should come to a stop till the Governor made regulations under paragraph 19 (1) (b) or till the District Council passed laws under para 3 (1) (g). The Governor in the first instance and the District Councils thereafter were vested with the power to carry on the administration and that in our opinion included the power to appoint and remove the personnel for carrying on the administration. The Governor in the first instance and the District Councils thereafter were vested with the power to carry on the administration and that in our opinion included the power to appoint and remove the personnel for carrying on the administration. Doubtless when regulations are made under para 19 (1) (b) or laws are passed under para 3 (1) with respect to the appointment or removal of the personnel of the administration, the administrative authorities would be bound to follow the regulations so made or the laws so passed. But from this it does not follow that till the regulations were made or the laws were passed, there could be no appointment or dismissal of the personnel of the administration. In our opinion, the authorities concerned would at all relevant times have the power to appoint or remove administrative personnel under the general power of administration vested in them by the Sixth Schedule. The view therefore taken by the High Court that there could be no appointment or removal by the District Council without a law having been first passed in that behalf under para 3(1) (g) cannot be sus­tained.� 10. Counsel for the appellant relied very heavily on the recent pronouncement of the Supreme Court in Sukhdev Singh v. Bhagatram A.I.R. 1975 S.C. 1331 wherein it has been ruled that bye-laws or regulations framed by a statutory corporation would amount to law, thus overruling the earlier decisions of the court holding that such bye-laws or regulations would not amount to law. Reliance was particularly placed on the observation in paragraph 15 of the judgment that “The powers of statutory bodies are derived, controlled and restricted by the statutes which create them and the rules and regulations framed thereunder.� It was therefore urged that regulations made under statutes will restrict powers and hence powers cannot be exercised without such regulations. The sentence only means that statutory bodies are con­trolled and restricted by the statutes and regulations in cases where the powers are restricted by such statutes or regula­tions. Reliance was then placed on the following sentence in paragraph 18 of the same judgment: “Regulations are in aid of the enforcement of the provisions of the statute.� It is naturally so. This does not mean that statutes cannot be enforced without regulations being framed when the provision conferring power to frame regulations confers a discretionary power. 11. Reliance was then placed on the following sentence in paragraph 18 of the same judgment: “Regulations are in aid of the enforcement of the provisions of the statute.� It is naturally so. This does not mean that statutes cannot be enforced without regulations being framed when the provision conferring power to frame regulations confers a discretionary power. 11. The appellants, as we indicated earlier, had been appointed by specific orders, similar to Ext. P-3 produced in O.P. No. 3442 of 1975 (W.A. No. 375 of 1975). These orders themselves were passed on the basis of a settlement (Ext. R-4 dated 3rd April 1970 in the same case). These orders having been based on a compromise settlement granting a concession and containing a stipulation that in case the test qualifications prescribed by Ext. P-1 were not acquired within the time stipulated, the persons promoted would be demoted, we do not think that the appellants can be allowed to agitate the matter in proceedings under Article 226 of the Constitution. The appellants had not obtained any right to the posts to which they were promoted by orders similar to Ext. R—1. The orders stated that the appointments were provisional. Further it was also stipu­lated that they would be reverted if they did not pass the tests. We are unable to spell out the infringement of any legal right to sustain the petitions under Article 226 of the Constitution. 12. We cannot help remarking that too long a period has been allowed to lapse without framing bye-laws by the Board laying down service conditions. Talking with refe­rence to section 79 (g) of the Act we adverted to the lack of regulations as envisaged by that sub-section. [Vide our judgments in O.P. No. 3321 of 1964 and that reported in Pylee Pillai v. The Kerala State Electricity Board, 1966 K.L.J. 641]. We are sure that the Board will apply its mind urgently to this aspect as it is desirable to have service conditions codified in the form of regulations. 13. We are unable to accede to the final request made by counsel for the appellants that the appellants may be allowed to continue to function as senior assistants till regu­lations are made under section 79 (c). We dismiss these appeals but direct the parties to bear their respective costs.