Dismissed

Jayan v. Kerala State Road Transport Corporation

Kerala HC29 Sept 2021WP(C)/26892/2018

Case brief

AI extract

What is this about?

Petitioners sought a direction to the State to declare KSRTC services as essential and strike actions as illegal. The Court held that Article 226 does not empower it to direct the legislature or executive to enact or amend legislation in a specific manner and dismissed the petition.

What did the court decide?

The writ petition was dismissed in limine as it was not maintainable for issuance of the direction sought.

Jayan Vs Kerala State Road Transport Corporation — Service and Employment | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 29^TH DAY OF SEPTEMBER 2021 / 7TH ASWINA, 1943

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WP(C) NO. 26892 OF 2018

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PETITIONER/S:

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1 JAYAN

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AGED 44 YEARS

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S/O.K.K.LOHIDAKSHAN,KADAYIL HOUSE, EDAKOCHI, COCHIN 682 010.

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2 RAJEEV AGED 51, S/O.P.N.MURALEEDHARA MENON,MLA ROAD, PUTHIYAKAVU, TRIPUNITHURA,ERNAKULAM, COCHIN 682 301.

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BY ADV SRI.SIVAN MADATHIL

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RESPONDENT/S:

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1 KERALA STATE ROAD TRANSPORT CORPORATION KSRTC BHAVAN, THIRUVANANTHAPURAM 695 023, REP. BY ITS

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MANAGING DIRECTOR.

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2 CHAIRMAN MANAGING DIRECTOR KSRTC BHAVAN, TRIPUNITHURA, COCHIN 695 023.

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3 STATE OF KERALA GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM - 695 001, REP. BY ITS CHIEF SECRETARY.

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4 THE SECRETARY (TRANSPORT) GOVERNMENT OF KERALA, SECRETARIAT,

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THIRUVANANTHAPURAM 695 001.

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5 LABOUR COMMISSIONER O/O. LABOUR COMMISSIONER, THOZHILBHAVAN,VIKAS BHAVAN, PMG, THIRUVANANTHAPURAM 695 033.

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6 KERALA STATE TRANSPORT EMPLOYEES UNION REG.NO.111 OF 1124ME, S.S.KOVIL ROAD,THAMPANOOR, THIRUVANANTHAPURAM 695 001,REP. BY ITS GENERAL SECRETARY, SRI.M.G.RAHUL.

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7 KSRT EMPLOYEES ASSOCIATION (REGD.) REG.NO.40/67, AZHIKODEN MANDIRAM, MANJALIKULAM ROAD, THIRUVANANTHAPURAM,REP. BY ITS GENERAL SECRETARY,C.K.HARIKRISHNAN.

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8 TRANSPORT DEMOCRATIC FEDERATION (TDF) (REGD) REG.NO.0106 OF 2002), HOS VARADARAJAN NAIR,SMARAK MANDIRAM, MANJALIKULAM ROAD,THIRUVANANTHAPURAM - 695 001, REP. BY ITS GENERAL SECRETARY, SIVA KUMAR V.S. BY ADVS. R1 & R2 BY SMT. PARVATHY KOTTOL R7 BY SRI. T.P. PRADEEP P.K. SATHEES KUMAR A.JAYASANKAR R6 BY SRI. MANU GOVIND ASHWIN SETHUMADHAVAN S.SABARINADH JOSON MANAVALAN RAHUL SURENDRAN KURYAN THOMAS PAULOSE C. ABRAHAM

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R3 to R5 BY SRI. K.P.HARISH SR. GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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'CR'

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Dated this the 29^th day of September, 2021.

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JUDGMENT

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S. MANIKUMAR,CJ.

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The petitioner has sought for the following reliefs:

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Issue writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents 3 and 4 to declare that the service rendered by the first respondent Corporation as essential service by invoking ESMA (Essential Service Maintenance Act)

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Declare that the strike offered by the respondent organisations 6 to 8 are illegal and impermissible.

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Direct the 3^rd and 4^th respondents to provide all measures for the smooth functioning of the first respondent Corporation's service and also provide adequate security for employees those who are ready to attend duty on 6^th midnight onwards.

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Direct the 1^st and 2^nd respondents to take all necessary measures for the smooth functioning of the Corporation on the 6^th and 7^th August and also on subsequent days.

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Direct the 3^rd and 4^th respondents to take appropriate measures to realize the loss, if any sustained to the first respondent Corporation due to the strike offered by the respondent Organisations.

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Direct the 5^th respondent Commissioner to consider the various demands raised by the Organisation or any other organisation within a time bound manner as fixed by this Court.

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On this day, when the matter came up for hearing, Mr. Sivan Madathil, learned counsel for the petitioners, submitted that except relief No.1, all other reliefs have become infructuous.

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In respect of prayer No.1, learned counsel for the petitioner

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submitted that the Unions of the Transport Corporation in Kerala indulge

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in strike, which causes not only inconvenience to the public, but also

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revenue loss to the Corporation and the State.

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In view of the above, learned counsel for the petitioners submitted that there shall be a direction to State of Kerala, Government Secretariat, Thiruvananthapuram – 695 001, rep. by its Chief Secretary, the Secretary (Transport), Government of Kerala, Secretariat, Thiruvananthapuram – 695 001, respondents 3 and 4 respectively, to declare the service rendered by the Kerala State Road Transport Corporation, KSRTC Bhavan, Thiruvananthapuram – 695 023, first respondent, as essential service by invoking the Essential Service Maintenance Act, 1968.

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He has further submitted that if any such direction is issued and any consequential enactment is made including the transport service, say public transport, an essential service by virtue of the provisions of the Essential Service Maintenance Act, 1968, Section 22 of the Industrial Disputes Act would be automatically taken care of.

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On the aspect as to whether the court, under Article 226 of the Constitution of India, could direct the legislature to legislate in a particular manner, we deem it fit to consider a few decisions:

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(i) In Municipal Committee, Patiala v. Model Town Residents Asson. and Ors. [(2007) 8 SCC 669], which dealt with a prayer to enact a law on taxation, and that the same can be made applicable to the case on hand, to understand the power of the court to issue a writ of mandamus, to legislate, the Hon'ble Supreme Court, held as under:

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“20. Before concluding, we have serious objections to the manner in which direction has been given by the Division Bench of the High Court to the Legislature. In this connection, we quote the last paragraph of the impugned judgment, which is as follows:

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“...Sections 3(1)(b) and 3(8aa) of the Act are declared unconstitutional and struck down.... The State shall be free to suitably amend Section 3(1) to provide for levy of house tax by adopting a uniform criteria for determination of annual value of similarly situated properties. The State shall also be free to amend Section 3(1) and lay down a uniform criteria for determination of annual value of properties occupied by the tenants as well as the owners in the light of the judgment of the Supreme Court in Sachidanand Kishore Prasad Sinha's case [1995]1 SCR 256 and observations made in this order. It is, however, made clear that any such enactment shall not effect the assessments made prior to the amendment of Section 3 by Punjab Act No. 11 of 1994 and the old cases, if any pending shall be decided in accordance with the unamended provision....” (emphasis supplied)

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In the above judgment, the High Court directs the State Legislature to amend the law relating to determination of annual value by classifying that any such amendment shall not be retrospective. We have serious reservations regarding such a direction. It is not open to the High Court under Article 226 of the Constitution, particularly in the matter of taxation directing it not to amend the law retrospectively. Such a direction is unsustainable, particularly in a taxing statute. It is always open to the State Legislature, particularly in tax matters, to enact validation laws which apply retrospectively. The High Court cannot take away the power of the State Legislature to amend the tax law retrospectively. The basis of the law can always be altered retrospectively.

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B. Sudershan Reddy, J.(concurring)-- While I entirely agree with my esteemed brother Kapadia, J. in the judgment proposed to be delivered by him, I wish to add particularly to supplement what he has said to the topic of separation of powers.

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24.The Constitution is filled with provisions that grant Parliament or to State legislatures specific power to legislate in certain areas. These granted powers are of course subject to constitutional limitations that they may not be exercised in a way that violates other specific provisions of the Constitution. Nothing in the text, history or structure of the Constitution remotely suggest the High Courts jurisdiction under Article 226 of the Constitution should differ in this respect - that invocation of such power should magically give High Court a free ride through the rest of Constitutional document. If such magic were available the High Court could structure, restructure legislative enactments. The possibilities are endless.The Constitution makers cannot be charged with having left open a path to such total obliteration of Constitutional enterprise.

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In Narinder Chand Hem Raj and Ors. v. Lt. Governor, Administrator, Union Territory, Himachal Pradesh and Ors . [1972]1 SCR 940, a writ of mandamus was sought by the petitioners from enforcing levy of sales tax on the sale of liquor. This Court held that the appellants were liable to pay tax imposed under the law. The appellants in reality wanted a mandate from court to the competent authority to delete the certain entry from Schedule A and include the same in Schedule B. The court proceeded to hold:

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“The power to impose a tax is undoubtedly a legislative power, that power can be exercised by the Legislature directly or subject to certain conditions the Legislature may delegate that power to some other authority. But the exercise of that power , whether by the Legislature by its delegate is an exercise of a legislative power. The fact that the power was delegated to the executive does not convert that power into an executive or administrative power. No court can issue a mandate to a Legislature to enact a particular law. Similarly no court can direct a subordinated legislative body to enact or not to enact a law which it may be competent to enact. The relief as framed by the applicant in his Writ Petition does not bring out the real issue calling for determination. In a reality he wants this Court to direct the Government to delete the entry in question from Schedule A and include the same in Schedule B. Article 265 of the Constitution lays down that no tax can be levied and collect except by authority of law. Hence the levy of a tax can

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only be done by the authority of law and not by any executive order. Unless the executive is specifically empowered by law to give any exemption, it cannot say that it will not enforce the law as against a particular person. No court can give a direction to a Government to refrain from enforcing a provision of law.” [Emphasis supplied]

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In T. Venkata Reddy and Ors. v. State of Andhra Pradesh [1985] 3 SCR 509, a Constitution Bench of this Court while considering the question as to whether it is permissible to strike down an Ordinance which has the same force and effect or an Act of Parliament or an. Act of State Legislature on the ground of non-application of mind or malafides or that the prevailing circumstances did not warrant the issue of an Ordinance held that validity of an Ordinance cannot be decided on grounds similar to those on which an executive or judicial action is decided. It is observed:

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“Any law made by the Legislature, which it is not competent to pass, which is violated of the provisions in Part III of the Constitution or any other constitutional provision is ineffective. It is a settled rule of constitutional law that the question whether a statute is constitutional or not is always a question of power of the Legislature concerned, dependant upon the subject matter of the statute, the manner in which it is accomplished and the mode of enacting it. While the courts can declare a statute unconstitutional when it transgresses constitutional limits, they are precluded from inquiring into the propriety of the exercise of the legislative power. It has to be assumed that the legislative discretion is properly exercised. The motive of the Legislature in passing a statute is beyond the scrutiny of courts. Nor can the courts examine whether the legislature had applied its mind to the provisions of a statute before passing it. The propriety, expediency and necessity of a legislative act are for the determination of the legislative authority and are not for determination by the courts.”

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It is so well settled and needs no restatement at our hands that the legislature is supreme in its own sphere under the

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Constitution subject to the limitations provided for in the Constitution itself. It is for the legislature to decide as to when and in what respect and of what subject matter the laws are to be made. It is for the legislature to decide as to the nature of operation of the statutes.

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In State of Himachal Pradesh v. A Parent of a student of Medical College, Simla and Ors. [1985] 3 SCR 676, the High Court of Himachal Pradesh required the State Government to initiate legislation against ragging in educational institutions and for this purpose time of six weeks was granted to the State Government. The decision was challenged before this Court. This court was of the opinion that the direction given by the division bench was nothing short of an attempt to compel the State Government to initiate legislation with a view to curb the evil of ragging. It is held:

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“...It is entirely a matter for the executive branch of the Government to decide whether or not to introduce any particular legislation. Of course, any member of the legislature can also introduce legislation but the court certainly cannot mandate the executive or any member of the legislature to initiate legislation, howsoever necessary or desirable the court may consider it to be. That it is not a matter which is within the sphere of the functions and duties allocated to the judiciary under the Constitution. If the executive is not carrying out any duty laid upon it by the Constitution or the law, the court can certainly require the executive to carry out such duty and this is precisely what the court does when it entertains public interest litigation. Where the court find, or being moved by an aggrieved party or by any public spirited individual or social action group, that the executive is remiss in discharging its obligations under the Constitution or the law, so that the poor and the underprivileged continued to be subjected to exploitation and injustice or are deprived of their social and economic entitlements or that social legislation enacted for their benefit is not being implemented thus depriving them of the rights and benefits conferred upon them, the court certainly can and must intervene and compel the executive to carry out its constitutional and legal obligations and ensure that the deprived and vulnerable sections

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of the community are no longer subjected to exploitation or injustice and they are able to realize their social and economic rights. When the court passes any orders in public interest litigation, the court does so not with a view to mocking at legislative or executive authority or in a spirit of confrontation but with a view to enforcing the constitution and the law, because it is vital for the maintenance of the rule of law that the obligations which are laid upon the executive by the Constitution and the law should be carried out faithfully and no one should go away with a feeling that the Constitution and the law are meant only for the benefit of a fortunate few and have no meaning for the large members of halfclad, half-hungry people of this country. That is a feeling which should never be allowed to grow. But at the same time the court cannot usurp the functions assigned to the executive and the legislature under the Constitution and it cannot even indirectly require the executive to introduce a particular legislation or the legislature to pass it or assume to itself a supervisory role over the law making activities of the executive and the legislature.” [Emphasis supplied]

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The court cannot usurp the functions assigned to the legislative bodies under the Constitution and even indirectly require the legislature to exercise its power of law making in particular manner. The court cannot assume to itself a supervisory role for the law making power of the legislature under the provisions of the Constitution. The High Court must ensure that while exercising its jurisdiction which is supervisory in nature it should not over step the well recognized bounds of its own jurisdiction.

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In Chandigarh Administrator and Ors. v. Manpreet Singh and Ors. [AIR1992 SC 435], the High Court while disposing of a petition under Article 226 of the Constitution changed the categorization and order of priority specified in the Rule framed by the University for giving admissions to engineering colleges. The Supreme Court while reversing the decision observed:

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“...if the High Court thought that this categorization was discriminatory and bad it ought to have struck down the categorization to

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that extent and directed the authority to reframe the rule. It would then have been upon to the rule making authority either to merge these two categories or delete one or both of them, depending upon the opinion they would have formed on a review of the situation. We must make it clear again that we express no opinion on the question of validity or otherwise of the rule.

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We are only saying that the High court should not have indulged in the exercise of 'switching' the categories - and that too without giving any reasons thereafter. Thereby, it has practicably assumed the role of rule making authority, or, at any rate, assumed the role of an appellate authority. That is clearly not the function of the High Court acting under Article 226 of the Constitution of India.”

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The High Court's directions to make the law in a particular manner are clearly unsustainable.”

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(ii) In Indian Soaps and Toiletries Makers Association v. Ozair Husain and Ors.

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[(2013) 3 SCC 641], the Hon'ble Supreme Court held as under:

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“37. The question arises as to whether in facts and circumstances noted above, the High Court was justified in issuing a writ of mandamus calling upon the Central Government to discharge its duty by amending rules.

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In A.K. Roy v. Union of India and Ors. [(1982) 1 SCC 271], this Court considered the question whether the Court should issue a mandamus calling upon the Central Government to discharge its duty without any further delay and held:

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“51.......The Parliament having left to the unfettered judgment of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force, it is not for the court to compel the government to do that which, according to the mandate of the Parliament, lies in its discretion to do when it considers it opportune to do it. The executive is responsible to the Parliament and if the Parliament considers that the executive has betrayed its trust by not bringing any provision of

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the Amendment into force, it can censure the executive,....”

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The aforesaid decision was noticed and reiterated by this Court in Supreme Court Employees' Welfare Association v. Union of India and Anr. (1989) 4 SCC 187, and held:

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“51. There can be no doubt that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority.”

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In Bal Ram Bali and Anr. v. Union of India [(2007) 6 SCC 805], this Court discussed the separation of powers while dealing with the question of total ban on slaughter of cows, horses, buffaloes and chameleon. This Court held that it is a matter of policy on which decision can be taken by the appropriate Government and the Court cannot issue any direction to Parliament or to the State Legislature to enact a particular kind of law. The writ petition was held to be not maintainable with the following observation:

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“3. It is not within the domain of the Court to issue a direction for ban on slaughter of cows, buffaloes and horses as it is a matter of policy on which decision has to be taken by the Government. That apart, a complete ban on slaughter of cows, buffaloes and horses, as sought in the present petition, can only be imposed by legislation enacted by the appropriate legislature. Courts cannot issue any direction to the Parliament or to the State legislature to enact a particular kind of law. This question has been considered in Union of India v. Prakash P. Hinduja and Anr. (2003) 6 SCC 195, wherein in para 30 of the reports it was held as under:

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“30. Under our constitutional scheme Parliament exercises sovereign power to enact laws and no outside power or authority can issue a direction

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to enact a particular piece of legislation. In Supreme Court Employees' Welfare Assn. v. Union of India (1989) 4 SCC 187, it has been held that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of a subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which it has been empowered to do under the delegated legislative authority. This view has been reiterated in State of J and K v. A.R. Zakki (1992) Supp. 1 SCC 548. In A.K. Roy v. Union of India (1982) 1 SCC 271, it has been held that no mandamus can be issued to enforce an Act which has been passed by the legislature....”

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In view of the aforesaid legal position, we are of the opinion that this Court cannot grant any relief to the Petitioners, as prayed for, in the writ petition. The writ petition is accordingly dismissed.”

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Learned Counsel for the Respondent-writ Petitioner relied on the decision of this Court in Union of India v. Association for Democratic Reforms and Anr. ( 2002) 5 SCC 294, and submitted that the "field has remained unoccupied this Court can issue such direction under Article 32 of the Constitution of India", but such submission cannot be accepted as it cannot be said that field has remained unoccupied as under the Drugs and Cosmetic Rules it is the Central Government which in consultation with the Drug Technical Advisory Board is empowered to decide whether any amendment is to be made in the relevant Rules showing the ingredients of vegetarian or non-vegetarian origin or to provide a symbol. In fact the issue in question was deliberated by the Central Government when such matter was referred to the Drug Technical Advisory Board

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which in its 48^th Meeting on 8th July, 1999 rejected such suggestion.

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In view of the discussions above, we hold that the High Court under Article 226 of the Constitution of India has no jurisdiction to direct the Executive to exercise power by way of subordinate Legislation pursuant to power delegated by the Legislature to enact a law in a particular manner, as has been done in the present case. For the same reason, it was also not open to the High Court to suggest any interim arrangement as has been given by the impugned judgment. The writ petition filed by Respondent being not maintainable for issuance of such direction, the High Court ought to have dismissed the writ petition in limine.”

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In the light of the above said decisions, we are of the view that

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enacting a legislation is purely the domain of the legislature, and the court, under Article 226 of the Constitution of India, cannot issue any direction to the Government or the legislature to legislate, in a particular

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manner, as prayed for, and therefore, prayer No.1 cannot be granted.

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Accordingly, this writ petition is dismissed.

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sd/- S. MANIKUMAR, CHIEF JUSTICE.

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sd/-

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SHAJI P. CHALY, JUDGE.

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