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2022 DIGILAW 198 (GAU)

Neilao Keditsu v. State Of Nagaland

2022-02-25

DEVASHIS BARUAH

body2022
JUDGMENT : Heard Mr. Taka Masa, learned senior counsel for the petitioner, assisted by learned counsel, Mr. Sentilong; Mr. Limawapang, learned counsel appears for Respondent Nos. 3 and 4; as well as Mr. Moa Imchen, learned Senior Government Advocate appearing on behalf of the State. 2. The instant Writ Petition has been filed challenging the Notification dated 24.02.2020 issued by the Principal Secretary to the Government of Nagaland, whereby, Regulation 34(c) 4(1) was amended by the State Government; whereby, the terms and conditions as regards the retirement of employees of the Nagaland Khadi and Village Industries Board (Hereinafter referred to as The Board) was amended. The brief facts of the instant case that The Board is a statutory body created by the Government of Nagaland under the provisions of the Nagaland Khadi and Village Industries Board Act, 1978 (For short The Act). In terms with Section 3 of the said Act, the Board is established and incorporated. For the purpose of the instant proceedings, it is relevant to take note that Section 34 of the said Act provides the power to make Regulations. The said Section 34 is quoted herein below: “(34) (1) The Board with the previous section of the Government, by notification, make regulations not in consistent with this Act and the rules made thereunder, for enabling it to perform its functions under this Act. (2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:- (a) the terms and conditions of appointment and service and the scaled of pay of officers and servants of the Board other than the Secretary including the payment or travelling and daily allowances in respect of journeys undertaking by such officers and servants for the purposes of this Act. (b) The time and place of meetings of the Board, the procedure to be followed in regard to transaction of business at such business at a meeting (c) Functions of Committees and the procedure to be followed by such committees in the discharge of their functions. (b) The time and place of meetings of the Board, the procedure to be followed in regard to transaction of business at such business at a meeting (c) Functions of Committees and the procedure to be followed by such committees in the discharge of their functions. (d) The delegation of power and duties to the standing Finance Committee, Secretary or any employees of the Board, (e) The maintenance of minutes of meetings of the Board and the transmission of copies thereof to the Government and the Khadi and the Village Industries Commission, (f) The persons by whom and the manner in which payments, deposits and investments may be made on behalf of the Board, (g) The custody of moneys require for the current expenditure of the Board and investments of moneys not so required. (h) The maintenance of accounts. (3) The Government, by notification, rescind any regulation made under this section and there upon the regulation shall cease to have effect.” Sub-Section (1) of Section 34 empowers the Board with previous sanction of the Government by notification, make regulations not inconsistent with the Act and the Rules made there under, for enabling it to perform its functions under the said Act. Sub-section (2) of Section 34 stipulates that in particular and without prejudice to the generality of the powers conferred under sub-section (1) of Section 34 such regulations as are made may provide for all or any of the matters as stipulated in sub-clauses (a) to (h) of sub-section (2) of Section 34. Sub-section (3) of Section 34 which is the focal point of the instant controversy empowers the Government by notification, rescind any regulation made under Section 34 of The Act and thereupon the regulation shall cease to have effect. 3. On the basis of the said powers conferred under Section 34(1) of The Act, the Board had made the Nagaland Khadi and Village Industries Board Regulations, 1988 (For short, The Regulations). 3. On the basis of the said powers conferred under Section 34(1) of The Act, the Board had made the Nagaland Khadi and Village Industries Board Regulations, 1988 (For short, The Regulations). For the purpose of the instant controversy, what is relevant to take note of is Regulation 34(c)4(1) and for the sake of convenience is quoted herein below: “34(c)(4)(1) All employees of the Board (other than the honorary workers) shall ordinarily retire on the date of completion of the age of 60 years.” In terms with the said regulation, all employees of the Board (other than honorary workers) shall ordinarily retire on the date of completion of the age of 60(sixty) years. 4. In the backdrop of the above, it would be relevant to take note of that by a Letter No. I&C/KVI-pension-5/11, dated 03.03.2015, issued by the Deputy Secretary to the Government of Nagaland, Industries and Commerce Department addressed to the Director of Industries and Commerce, Nagaland, Kohima, it was conveyed that the Board shall be brought within the purview of the Nagaland Retirement from Public Employment Act, 1991 and consequently, Regulation 34(c)(4)(1) of the Regulation may be suitably amended. This decision of the Government of Nagaland was brought to the attention of the Chief Executive Officer of the Board vide a communication dated 19.03.2015 and subsequently, vide another communication dated 23.06.015 the Director of Industries and Commerce had further reminded for taking necessary action at the earliest. Various employees of the Board including the petitioners herein assailed letters dated 03.03.2015, 19.03.2015 and 23.06.2015 before this Court by filing various Writ Petitions. This Court vide Judgment and Order dated 10.05.2016 had set aside the said communications holding inter alia that the employees of the Board are beyond the purview of the Nagaland Retirement from Public Employment Act 1991. Paragraph 16 and 17 of the said judgment being relevant is quoted herein below: “16. Considering the ratio laid down by the Supreme Court in Punab State Warehousing (supra) and also the materials available on record, this Court is of the considered opinion that the impugned letters dated 3/3/2015, 19/3/2015 and 23/6/2015 are illegal and misplaced particularly when there is no denial from the State respondents that the employees of NKVIB do not hold any State Public Service. This Court has also considered the submissions forwarded by the learned Addl. Sr. This Court has also considered the submissions forwarded by the learned Addl. Sr. Government that the other public sector undertakings have adopted the Act of 1991 and the Act of 2009 in so far as the case of retirement is concerned. This Court has also perused the service rules of the Nagaland Industrial Development Corporation Ltd. (NIDC) which has been produced by the learned senior counsel appearing for the petitioner. A perusal of the same would indicate that there is a provision under the rules that employees of the NIDC shall retire at the age prescribed by the Government. The other Public Sector Undertaking has also provisions in their respective rules with regard to the service condition more particularly, the retirement condition. However, in the instant case in hand, the employees of NKVIB has a specific regulation being the Regulation of 1988, more particularly, Regulation 34(c)(4)(1) which clearly provides that the employees of the Board shall retire on completion of 60 years of age. The age is in force till date. 17. In the facts and circumstances of the case and on consideration of the materials available on record, this Court has no hesitation to hold that the employees of NKVIB does not come under the purview of the Act 1991 and the Act of 2009. Accordingly, the impugned orders dated 3/3/2015, 19/3/2015 and 23/6/2015 are set aside and quashed.” 5. A perusal of the said judgment would go to show that the employees of the Board does not come under the purview of the Act of 1991 and accordingly, the impugned communications dated 03.03.2015, 19.03.2015 and 23.06.2015 were set aside and quashed. It has been admitted in the bar that there was no appeal filed against the said judgment passed by this Court and the same has already attained finality. 6. Thereupon, in a Cabinet Meeting held on 13.01.2020, the Cabinet discussed and approved for amendment of the Nagaland Khadi Village Industries Board Service Rules in consonance with the Nagaland Retirement from Public Employment, (Second Amendment) Act, 2009, and in pursuance thereto, the impugned Notification was issued on 24.02.2020 whereby the State Government amended the Regulation 34(c)(4) (1). 7. 6. Thereupon, in a Cabinet Meeting held on 13.01.2020, the Cabinet discussed and approved for amendment of the Nagaland Khadi Village Industries Board Service Rules in consonance with the Nagaland Retirement from Public Employment, (Second Amendment) Act, 2009, and in pursuance thereto, the impugned Notification was issued on 24.02.2020 whereby the State Government amended the Regulation 34(c)(4) (1). 7. The case of the petitioners is that, though they had completed 35 (thirty-five) years of service but did not attain the age of 60 (sixty) years and by virtue of the said amendment, the petitioners would have to retire in terms with the impugned Notification and as such have challenged the same primarily on two grounds. First, that by virtue of sub-section (3) of Section 34, the power conferred upon the State Government is only the power to rescind any regulation made under the said Section, but the State Government has no authority or jurisdiction to make or amend a regulation. The provision of Section 34(1) reserves the power to make regulation only upon the Board. Secondly, it is the further contention of the petitioners that by virtue of the Judgment and Order dated 10.05.2016, this Court had categorically held that the employees of the Board like the petitioners did not come within the ambit of The Act of 1991and the said aspect of the matter has already attained finality and without an amendment to the provisions of Section 2(1) of the said Act of 1991, to issue the impugned Notification on the basis of the Nagaland Retirement from Public Employment, (Second Amendment) Act, 2009, and thereby to amend the regulation amounts to executively over-ruling the judgment of this Court which is not permissible as per law. 8. At this stage, it may be relevant herein to mention that the Writ Petition was filed on 29.02.2020. Upon the Writ Petition being filed, this Court vide Order dated 02.03.2020 had issued notice and stayed the operation of the impugned Office Memorandum, Notification and the Communications. It is also relevant to take note that in the meantime the petitioners No. 1 and 2 had already retired from service on attaining the age of 60 years; however, the petitioner No. 3 is still in service. 9. The Respondent Nos. It is also relevant to take note that in the meantime the petitioners No. 1 and 2 had already retired from service on attaining the age of 60 years; however, the petitioner No. 3 is still in service. 9. The Respondent Nos. 1 and 2 had filed an Affidavit-in-Opposition and the primary contention in the said Affidavit-in-Opposition is that by virtue of Section 34(3) of the Act as quoted herein above, the Government has the power to legislate, amend and revoke any provisions of the Regulations of 1988. It was also stated in the said Affidavit-in-Opposition that the employees of the Board are appointed in connection with the affair of the State. Furthermore, their pay, salaries and expenses of the Board are paid by the Nagaland Exchequer and as such the State Government has every right to legislate, amend and revoke any regulations of the Regulations of 1988 as provided under Section 34 of the Act. The Respondent Nos. 3 and 4 had filed an Affidavit-in-Opposition supporting the case of the petitioners. 10. From a perusal of the materials on record and the contentions made by the learned counsels for the parties the issue which arises for determination is as to whether the State Government has the power to amend the regulation, or in other words, whether the power to rescind would include the power to make or amend the Regulation. A perusal of Section 34(1) would clearly show that the power to make the Regulation is given only to the Board and by applying Section 35 of the Nagaland Interpretation and General Clauses Act, 1978, it is only the Board who would have the power to amend, legislate or rescind any of the Regulations. But the legislature in so far as the powers conferred upon the State Government, had limited the said power only to rescind such Regulations as made under Section 34 of the Act as can be seen from Section 34(3) of the Act. At this stage, reference to the judgment of the Supreme Court in the Case of Eera V. The State (NCT of New Delhi) reported in (2017) 15 SCC 133 , and more particularly, to paragraph No. 139 which being relevant is quoted herein below: “139. At this stage, reference to the judgment of the Supreme Court in the Case of Eera V. The State (NCT of New Delhi) reported in (2017) 15 SCC 133 , and more particularly, to paragraph No. 139 which being relevant is quoted herein below: “139. A reading of the Act as a whole in the light of the Statement of Objects and Reasons thus makes it clear that the intention of the legislator was to focus on children, as commonly understood i.e., persons who are physically under the age of 18 years. The golden rule in determining whether the judiciary has crossed the Lakshman Rekha in the guise of interpreting a statute is really whether a Judge has only ironed out the creases that he found in a statute in the light of its object, or whether he has altered the material of which the Act is woven. In short, the difference is the well known philosophical difference between “is” and “ought”. Does the Judge put himself in the place of the legislator and ask himself whether the legislator intended a certain result, or what he thinks should have been done had he been the legislator and would go beyond creative interpretation of legislation to legislating itself. It is at this point that the Judge crosses the Lakshman Rekha and becomes the legislator, stating what the law ought to be instead of what the law is.” The above quoted paragraph would show the limits of interpretation to be given to a particular provision. The Supreme Court in the above judgment had observed what should be the role in determining whether the judiciary had crossed the Lakshman Rekha in the guise of interpreting a statute is really whether a judge has only ironed out the creases that he found in the statute in the light of its object or whether he has altered the material of which the Act is woven, The Supreme Court had further observed that when a judge puts himself in the place of legislator and asks himself whether the legislator intended a certain result or what he thinks should have been done had he been the legislator and would go beyond the creative interpretation of legislation to legislating itself. It is at this stage that the judge would cross the Lakshman Rekha and becomes a legislator stating what the law ought to be instead of what the law is. 11. In another recent judgment of the Supreme Court in the case of Project Director Highways No. 45 E and 220 National Highway Authority of India V. M. Hakim and Anr. reported in (2021) 9SCC 1, the Supreme Court was called upon to decide as to whether the power of the Court under Section 34 of the Arbitration and Conciliation Act, 1996 would include the power to modify the award. The Supreme Court in paragraph no. 48 held that the Parliament had clearly intended no power of modification of award exists in Section 34 of the Arbitration and Conciliation Act, 1996. The said paragraph being relevant is quoted herein below: “48. Quite obviously, if one were to include the power to modify and award in Section 34, one would be crossing the Lakshman Rekha and doing what, according to the justice of a case ought to be done. In interpreting a statutory provision, a Judge must put himself in the shoes of Parliament and then ask whether Parliament intended this result. Parliament very clearly intended that no power of modification of an award exists in Section 34 of the Arbitration Act, 1996. It is only for Parliament to amend the aforesaid provision in the light of the experience of the courts in the working of the Arbitration Act 1996 and bring it in line with other legislations the world over.” 12. In the instant case it would be seen that the legislature had specifically reserved the power under Section 34(3) upon the State Government to only rescind the Regulation, and to interpret the said power of rescind to include the power to make, modify and amend the regulation would be crossing the Lakshman Rekha and as such this Court is, therefore, of the opinion that the Section 34(3) of the Act only empowers the State Government to rescind any regulation made under Section 34 and not to amend, modify or make such regulation. Consequently, the impugned notification dated 24.02.2020 (Annexure-20 to the Writ Petition), is hereby set aside and quashed. 13. Consequently, the impugned notification dated 24.02.2020 (Annexure-20 to the Writ Petition), is hereby set aside and quashed. 13. This Court having held that the State Government by virtue of Section 34(3) of the Act cannot amend the Regulations as the power is limited to only rescind; the said impugned Notification is ultravires the provisions of the Act. Consequently, this Court does not deem it necessary to go into the contention of the petitioners as regards that vide the impugned Notification, the State Government has executively overruled the judgment and order dated 10.05.2016 passed in WP(C) No. 119(K)/2015 and others. 14. Accordingly, the instant Writ Petition stands allowed. However, the parties shall bear their own costs.