ROSHAN JACOB OOMMEN V. UNION OF INDIA

WP(C)/22805/2017

AI Insights

The case involves a writ petition filed by Roshan Jacob Oommen, seeking directions to the Union of India and the State of Kerala to safeguard citizens' interests during a strike announced by the Federation of Indian Petroleum Traders. The petitioner argued that such strikes disrupt the supply of essential fuel, affecting transportation and emergency services. The petition was amended to request the invocation of ESMA and KESMA to mitigate the impact of the strike. The court considered the steps already taken by the government to ensure fuel availability and concluded that while the strike is a trade dispute, the governments have the authority and duty to act under ESMA and KESMA to protect public interests.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 678571 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 27-07-2017
• Assessment Year: misc
• Other Referred Cases: Hirday Narain v. Income-Tax Officer, Bareilly [AIR 1971 SC 33], Julius v. Bishop of Oxford [(1880) 5 AC 214]
• Laws Referred To: Essential Services Maintenance Act, 1981, Kerala Essential Services Maintenance Act, 1994
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: N NAGRESH; M R SABU
• Assessee Lawyers: O A NURIYA
• Keywords: Discretionary power; Public good; Petroleum dealers' strike; Essential Services Maintenance Act; Kerala Essential Services Maintenance Act
• Section: 2(1)(a)(iii)

Judgement Text

"'C.R' IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 27TH DAY OF JULY 2017/5TH SRAVANA, 1939 WP(C). No.22805 of 2017 (S) ------------------- PETITIONER(S): ROSHAN JACOB OOMMEN, AGED 31 YRS, S/O. B. O. THOMAS, VILLA LAKE RETREAT, CHIRAKKAL, KANNUR-11. BY ADV. SMT. O. A. NURIYA RESPONDENT(S): 1. UNION OF INDIA, REP. BY SECRETARY TO THE GOVERNMENT, DEPARTMENT OF PETROLEUM AND NATURAL GAS, NEW DELHI-110001. 2. MINISTRY OF PETROLEUM AND NATURAL GAS, REP. BY SECRETARY, GOVERNMENT OF INDIA, NEW DELHI-110001. 3. STATE OF KERALA, REP. BY CHIEF SECRETARY TO THE GOVERNMENT, GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM-695001. 4. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, TRIVANDRUM-695001. 5. FEDERATION OF ALL INDIA PETROLEUM TRADERS (FAIPT), REP. BY ITS DIRECTORS, 1/1, VANSITTART ROW, KOLKATA, WEST BENGAL-700001. 6. CONSORTIUM OF INDIAN PETROLEUM DEALER'S ASSOCIATION, REP. BY ITS PRESIDENT ROOM NO.4, 2ND FLOOR, TARDEO AIR CONDITIONED MARKET BUILDING, TARDEO ROAD, TULSIWADI, MUMBAI-400034. R1 & R2 BY ADV. SRI. N. NAGARESH, ASSISTANT SOLICITOR GENERAL R3 & R4 BY SENIOR GOVERNMENT PLEADER SRI. M. R. SABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C). No. 22805 of 2017 (S) APPENDIX PETITIONER(S)' EXHIBITS:- EXT .P1: COPY OF THEIR ORIGINAL ONLINE NEWS OF THE HINDU DAILY DATED 3/7/17. EXT .P2: COPY OF THEIR ORIGINAL ONLINE NEWS OF THE FINANCIAL EXPRESS DATED 3/7/17. EXT.P3: COPY OF THEIR ORIGINAL ONLINE NEWS OF THE DAILY PIONEER DATED 22/4/17. EXT.P4: COPY OF THEIR ORIGINAL OF THE DECCAN CHRONICLE DATED 4/7/17. EXT.P5: COPY OF THEIR ORIGINAL ONLINE NEWS OF THE HINDU DATED 7/7/17. EXT.P6: COPY OF NEWS POSTED ONLINE DEFERRING STRIKE TO AUG 1ST. EXT.P7: COPY OF NEWS POSTED ONLINE DEFERRING STRIKE TO AUG 1ST. EXT.P8: COPY OF NEWS POSTED ONLINE DEFERRING STRIKE TO AUG 1ST. EXT.P9: COPY OF NOTIFICATION DATED 27.02.1993 FOR IDENTIFICATION. RESPONDENT(S)' EXHIBITS:-NIL KRJ //TRUE COPY// P.A TO JUDGE C.R. Navaniti Prasad Singh, C.J. & Raja Vijayaraghavan V., J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 22805 of 2017 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of July, 2017 JUDGMENT Navaniti Prasad Singh, C.J. The writ petition was originally filed for a direction to the Union of India and the State of Kerala to take necessary steps to safe guard the interest of citizens in view of the petroleum dealers' strike that was announced by the Federation of Indian Petroleum Traders on 11th and 12th of July, 2017. 2. By the amendment petition, I.A. No.11930 of 2017, as the aforesaid date being over and the Federation of Indian Petroleum Traders have now announced the 1st of August, 2017 as a nation wide strike, additional facts have been brought on record. An additional relief is also sought for, for a direction to the Union of India and the State of Kerala to invoke provisions of the Essential Services Maintenance Act, 1981 (for short 'ESMA') as well as the Kerala Essential Services Maintenance Act, 1994 (for short 'KESMA'), State legislation. 3. The Central Act authorises the Central Government to invoke the provisions of the said Act to ensure maintenance of WP(C) No. 22805 of 2017 -:2:- supplies of Essential Services and the Kerala Act authorises the State to do so. In view of Section 2(1)(a)(iii) of the Central Act (ESMA), the petroleum dealers would fall within the meaning of Essential Services. 4. By the amendment petition a direction is sought as against the Central Government and the State Government to invoke the powers conferred on it under the said two Acts in order to alleviate the harassment and miseries of common citizens at the time of such a strike. We have heard learned counsel on both sides. 5. The petitioner contends that the strike of petroleum dealers deprives the citizens of their right to receive fuel affecting their transportation. Transportation may be for work, for pleasure, for convenience or for medical or other emergencies. If for the whole day the dealership remain closed, the citizens would suffer and if the closure spreads over two days or more, the citizens would suffer even more. The State cannot be a mute spectator. The whole purpose of the two Acts aforesaid, i.e. ESMA and KESMA is to tackle such situations and the WP(C) No. 22805 of 2017 -:3:- Governments are bound to exercise their discretion in a manner appropriate, or else the two laws would be dead letter and the citizens would be put to peril. 6. Learned Central Government Counsel points out, specifically with reference to Kerala, that petrol pumps are basically of three kinds. First which are Company owned and Company operated, meaning thereby, belonging to the petroleum company themselves. The second, which are run by the Kerala Civil Supplies Corporation and the third one by private dealers. According to learned Central Government Counsel, the Company outlets and the Civil Supplies Corporation outlets remained functional and even in future strike which may be announced by Federation, they will remain open. Steps are being taken to adequately stock fuel so that they do not run dry through this period. Steps have been taken to ensure that before and after the strike, adequate supplies are made available at all dealership shops to ensure that there is no scarcity. It is also submitted that it shall be ensured that people are not made to wait for long time, which may be inevitable because large number of people WP(C) No. 22805 of 2017 -:4:- turn up at the same time. Steps are being taken to reduce the harassment of the public as much as possible. 7. We have considered the arguments and we have noted some of the steps taken by the Central Government to help citizens. This strike apparently is in furtherance of a trade dispute. But, we must not forget that citizens can not be held to ransom and for preventing such acts, adequate provisions are there in the Central and State Acts. The power of the Central and the State Governments being discretionary, it cannot be said to be absolutely unguided. If the conditions are right, then this discretionary power under the said statutes has to be exercised and resorted to, because the Acts are for public good. 8. We can do no better than quote what the Apex Court has held in Hirday Narain v. Income-Tax Officer, Bareilly [AIR 1971 SC 33] with reference to what was held in the case of Julius v. Bishop of Oxford [(1880) 5 AC 214] which would cover the entire field. Paragraph 13 reads as under : “In Julius v. Bishop of Oxford, {(1880) 5 AC 214 it was observed by Cairns L.C. At pp.222-223 that “ the words “it shall be lawful” conferred a faculty or power, and they did not WP(C) No. 22805 of 2017 -:5:- of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so.” Lord Blackburn observed in the same case at pp.244-245 that the enabling words give a power which prima facie might be exercised or not, but if the object for which the power is conferred is for the purpose of effectuating a right there may be a duty cast upon the donee of the power to exercise it for the benefit of whose who have that right when required on their behalf. Lord Penzance and Lord Selborne made similar observations at pp.229 and 235.” With these observations, we would dispose of this writ petition. Sd/- Navaniti Prasad Singh, Chief Justice Sd/- Raja Vijayaraghavan V., Judge ttb/28/07 "