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Nagaland Cabinet’s act infringed the ‘Lakshman Rekha’: HC

Nagaland News

DIMAPUR, FEBRUARY 27: The Kohima Bench of Gauhati High Court has ruled that an act committed by the Nagaland Cabinet on January 13, 2020 was an infringement of the Lakshman Rekha.
In an order issued last week, Justice Devashis Baruah also set aside and quashed an order issued (basing on the Cabinet action) by Nagaland Government on February 24, 2020.
As per Court documents, the case pertains to a writ petition filed in 2020 by Neilao Keditsu, (now retired) Deputy Chief Executive Officer of Nagaland Khadi and Village Industries Board (NKVIB), Kohima; Imlinuken Ao, (now retired) Executive Officer of NKVIB, Mokokchung; and Kegwanyo Tep, Executive Officer of NKVIB, Phek, against the State of Nagaland represented by the Chief Secretary; Principal Secretary of Industries and Commerce; Chairman of NKVIB, Kohima; and Chief Executive Officer of NKVIB, Kohima.
The petition was filed to challenge an order issued on February 24, 2020 by the Principal Secretary notifying the State Government’s amendment of Regulation 34(c) 4(1) of the Nagaland Khadi and Village Industries Board Regulations, 1988, which deals with the retirement of NKVIB employees.
“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 ( in short The Act). In terms with Section 3 of the said Act, the Board is established and incorporated”, the Court noted.
Seven-year itch
In the ruling, Justice Baruah recalled that even in March 2015, Nagaland Government had attempted to bring the Board within the purview of Nagaland Retirement from Public Employment Act, 1991.
But basing on three writ petitions filed by various employees of the Board, the Court had ruled on May 10, 2016, that the employees of NKVIB were beyond the purview of Nagaland Retirement from Public Employment Act 1991.
“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”, stated the order.
However, on January 13, 2020, Nagaland Cabinet held a meeting 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 ~ following which the February 24, 2020 notification was issued.
“The case of the petitioners is that though they had completed 35 years of service but did not attain the age of 60 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 1991, and 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”, it stated.
Apex Court rulings
Justice Baruah referred to two verdicts delivered by the Supreme Court. In the 2007 case of ‘Eera Vs The State (NCT of New Delhi)’, the SC had observed that what should determine whether the judiciary had crossed the Lakshman Rekha in the guise of interpreting a statute was “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”.
Then in the 2021 case of ‘Project Director Highways No. 45 E and 220 National Highway Authority of India Vs M Hakim and another’ reported in (2021), the apex Court had stated that “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”.
Drawing from these two SC rulings, Baruah ruled that in this particular case, the legislature had specifically reserved the power under Section 34 (3) upon the State Government to only rescind the Regulation, “and to interpret the power of rescind to include the power to make, modify and amend the regulation would be crossing the Lakshman Rekha”.
As such, he ruled that 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.
(Page News Service)

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