Hon'ble Yogesh Chandra Gupta,J.
1. We have heard Sri K.N. Misra, learned counsel for the petitioner. Sri Ram Surat Saroj holding brief for Sri Jyoti Bhushan appears for the National Commission for Scheduled Caste and Scheduled Tribes, State Office, Lucknow through its Director.
2. U.P. State Hand Loom Corporation Ltd., Kanpur Nagar (hereinafter called as 'the Corporation') has approached the High Court for quashing the orders dated 2.12.2008, and 24.11.2008, passed by the Director, National Commission for Scheduled Caste and Scheduled Tribes, State Office, Lucknow by which directions have been given to the Corporation, to allow Sri Braj Raj - respondent No.6, to sit in the Office of the Corporation, for payment of his salary on priority basis, and to give requisite information of compliance, within five days.
3. It is submitted by Sri K.N. Mishra, learned counsel appearing for the petitioner Corporation that Sri Braj Raj - respondent No. 6, is not the employee of the Corporation. He was initially engaged as a production supervisor trainee, on a stipend of Rs.250/- per month, in June 1988, and was thereafter appointed as Production Supervisor w.e.f. 23.9.1991, in the pay scale of Rs.950-1500/-. Since he is only Intermediate, with certificate in elementary weaving and dyeing course, he was retrenched from the Corporation on 25.4.2004, along with about 900 employees, under order No. 840-41, after complying with the provisions of U.P. Industrial Dispute Act. His re-engagement was provided only in case of necessity of his services. One Shri Shiv Ganesh Lodhi, the then Chairman of Corporation, a BSP MLA, passed an order on 21.11.2000, directing the Managing Director of the Corporation, to appoint him as Manager (Production), a post for which the minimum qualification was B.E. Textile Engineering, or a Diploma in Textiles from Indian Institute of Handloom Technology. No action was taken on these orders and the matter was referred to the State Government.
4. It is stated that the then Managing Director, vide order dated 23.01.2006, re-employed respondent No.6, on the post of Senior Manager (Production) in the pay scale of Rs.3100-4500/- w.e.f. 13.8.1991. This order was passed, when there was complete ban on appointment, in the Corporation w.e.f. on the Government Order dated 8.10.1991. Respondent No.6, was not qualified to hold the post of Senior Manager (Marketing/Production), for which the essential qualification is Degree in Textile Engineering or Diploma from IIHT. No procedure was followed in such appointment. Since respondent No. 6 was not eligible to be appointed on the post of Senior Manager (Marketing/Production), the then Managing Director, cancelled the illegal appointment on 25.1.2006, i.e. on the third day of his illegal appointment.
5. Sri Braj Raj, instead of approaching the judicial forum in challenging the order, made a complaint to the National Commission for Scheduled Caste and Scheduled Tribes, Lucknow (hereinafter referred to as 'the Commission'), alleging that he is being harassed, and has not been allowed to work. The Director of the Commission sent a notice to the Managing Director of the Corporation, to submit his explanation. The Managing Director, by his letter dated 12.9.2008, sent a detailed reply, to the Director of the Commission, giving the facts as stated above, and also stated that Sri Braj Raj has unauthorisedly entered the office of the Corporation; tried to forcibly put signatures on the attendance register, and started handling the documents. An FIR was lodged at P.S. Kakadeo, Kanpur on 5.10.2006. It was further reported in the reply dated 12.9.2008, that the Managing Director has never abused Sri Braj Raj. Since his appointment dated 22.1.2006, has been cancelled on 25.1.2006, there was no question of allotting him any work, and paying him salary.
6. In the counter affidavit of Sri R.D. Chandrahas, the Director of the Commission, it is stated in paragraphs 8, 9 and 10 as follows:-
"8. That thereafter a letter dated 12.9.2008 was received by the office of answering respondent in reply to the aforesaid letters. A copy of the letter dated 12.9.2008, is being filed herewith and marked as Annexure-CA-4.
9. That the complaint of Sri Braj Raj as well as the letter dated 12.9.2008 has been perused and considered by the authorities of the answering respondent and come to the conclusion that reply submitted by the Managing Director of Handloom Corporation dated 12.9.2008 have no force, as such, the answering respondent issued letter dated 17.9.2008 and thereafter 24.11.2008 to th Managing Director for considering the grievance of Sri Braj Raj. For kind perusal of this Hon'ble Court, photocopy of letters dated 17.9.2008 & 24.11.2008 is being filed herewith collectively and marked as Annexure-CA-5 to this counter affidavit.
10. That when no action was taken by the Managing Director U.P. Handloom Corporation, the answering respondent has issued a letter of the District Magistrate, Sr. Superintendent of Police Kanpur Nagar for taking necessary steps to protect the grievances of Sri Braj Raj so that justice be done. For kind perusal of this Hon'ble Court, photocopy of the letter dated 2.12.2008 is being filed herewith and marked as Annexure-CA-6."
7. Sri Ram Surat Saroj, learned counsel appearing for the Commission submits that the Commission was not satisfied with the reply given by the Managing Director of Corporation, and has relied upon report of the police, in which the allegations in the FIR are not found to be correct and consequently, in exercise of powers conferred on it, directed the District Magistrate and Senior Superintendent of Police, to stop harassment of respondent No.6, and allow him to work.
8. The National Commission for Scheduled Caste and Scheduled Tribes has been constituted under Article 338 of the Constitution of India. The Commission, under Clauses (5) and (6) of the Article 338 of the Constitution of India does not have power, to issue any directions. It has been conferred with powers, to investigate and monitor all matters relating to the safeguards, provided for the Scheduled Castes and Scheduled Tribes ; to enquire into specific complaints with respect to deprivation of rights and safeguards of the Scheduled Castes and Scheduled Tribes; to participate and advise on the planning process of socio-economic development of the Scheduled Castes and Scheduled Tribes and to evaluate the progress of their development under the Union and any State; to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards,; to make such recommendations or measures that should be taken by the Union or any State and to discharge such other functions in relation to protection, welfare and development and advancement of Scheduled Castes and Scheduled Tribes.
9. Clauses (5) and (8) of the Article 338 of the Constitution, introduced by the Constitution (Sixty Fifth) Amendment Act 1990, provides:-
"(5) It shall be the duty of the Commission-
(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes and Scheduled Tribes under this Commission or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes and Scheduled Tribes;
(c) to participate and advise on the planning process of socioeconomic development of the Scheduled Castes and Scheduled Tribes and to evaluate the progress of their development under the Union and any State;
(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
(e) to make in such report recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes and Scheduled Tribes; and
(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes and Scheduled Tribes as the President may, subject to the provisions of any law made by Parliament, by rule specify.
(6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or purposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations.
(7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations.
(8) The Commission shall, while investigating any matter referred to in Sub-clause (a) or inquiring into any complaint referred to in Sub-clause (b) of Clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely:
(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses and documents;
(f) any other matter which the President may, by rule, determine."
10. In All India Indian Overseas Bank Scheduled Castes and Scheduled Tribes Employees Welfare Association & others Vs. Union of India and others [JT 1996 (1) of S.C. 287], the Supreme Court has examined the scope/powers of the Commission, with reference to analogues powers in the Commission of Inquiring Act 1957, and held in paragraphs 9, 10, 11 and 12 as follows:-
"9. In M.V. Rajwade v. Dr. S.M. Hassan AIR (1954) Nagpur 71, the question whether the Commission of Inquiry, by virtue of the above provisions, could be treated to be a civil court for the purpose of the Contempt of Courts Act, 1971 came to be considered. The High Court observed as under:
It would appear from Section 4 that it only clothes the Commission with certain powers of a Civil Court but does not confer on it the status of a Court. It is only under Sub-section (4) of Section 5 that the Commission is deemed to be a Civil Court and Sub-section (5) imparts to the proceeding before it the character of a judicial proceeding. However, these provisions only create a fiction which cannot extend beyond the purpose for which it is created.
10. The judgment in the case of M.V. Rajwade (supra) was referred to with approval by this Court in Dr. Baliram Waman Hiray v. Justice B. Lentin and Ors. The question in that case was whether the Commission of Inquiry constituted under Section 3(1) of the Commissions of Inquiry Act, 1952 was a court for the purpose of Section 195 (1) (b) Criminal Procedure Code, 1973. It was contended before the Court that Sub-section (4) of Section 5 of the Commission of Inquiry Act created a legal fiction by which the Commission of Inquiry was deemed to be a Civil Court for all purposes. It was held that the words "for all purposes" are not there in the first part of Sub-section (4) and the Court cannot, in the guise of interpreting the provision, supply any casus omissus. The Court went on to say that the purpose of creating the fiction was reflected in the second part of Sub-clause 4, viz., for the purpose of proceedings under Section 482 of the Old Code and Section 346 of the new Code of Criminal Procedure.
11. Interestingly, here, in Clause 8 of Article 138, the words used are "the Commission shall... have all the powers of the Civil Court trying a suit." But the words "all the powers of a Civil Court" have to be exercised "while investigating any matter referred to in Sub-clause (a) or inquiring into any complaint referred to in Sub-clause (b) of Clause 5". All the procedural powers of a Civil Court are given to the Commission for the purpose of investigating and inquiring into these matters and that too for that limited purpose only. The powers of a Civil Court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inferred or derived from a reading of Clause 8 of Article 338 of the Constitution.
12. The Commission having not been specifically granted any power to issue interim injunctions, lacks the authority to issue an order of the type found in the letter dated March 4, 1993. The order itself being bad for want of jurisdiction, all other questions and considerations raised in the appeal are redundant. The High Court was justified in taking the view it did. The appeal is dismissed. No costs."
11. We may also refer to the provisions of U.P. Commission for the Scheduled Castes and Scheduled Tribes Act 1995, by way of reference, in which similar functions and powers have been provided in Sections 11 and 12 - Chapter III of the Act. The powers to summoning or enforcing attendance of any person and examining him on oath; requiring the discovery and production of any document' receiving evidence on affidavits' requisitioning any public record or copy thereof from any Court or office'; issuing commissions for the examination of witnesses and documents' and any other matter that may be prescribed by Section 12 of the State Act are for the purposes of facilitating investigation and enquiries. These powers are not for issuing any orders or decrees to be implemented by the public authorities. If, after making investigation and enquiry, the National Commission or State Commission for the Scheduled Castes and Scheduled Tribes comes to any conclusion with regard to atrocities committed, or for ensuring socio-economic upliftment of the members of the Scheduled Castes and Scheduled Tribes, the Commission can make a recommendation to the President /Governor, as the case may be, to give due consideration for the benefit of the members of the community.
12. In the present case, the Commission completely failed to consider the reply given by the Managing Director of Corporation. The averments in para 9 of the counter affidavit that the reply of the Managing Director of the Corporation dated 12.9.2008, has no force shows that there was no application of mind to the reply. The reasons given in the reply were not considered by the National Commission at all. The Commission also failed to take into account that respondent No.6, was a retrenched supervisor. He was not eligible to be appointed on the post of Senior Manager (Production). His illegal appointment was void and inoperative and was cancelled by the Managing Director of the Corporation, within three days, on 25.01.2006, and that there was no order of any judicial forum or court setting aside the order of cancellation of his appointment.
13. We also find that the order dated 23.1.2006, by which the then Managing Director of the Corporation had appointed respondent No.6 - Sri Braj Raj, as Senior Manager Marketing/Production was wholly illegal. He had no authority to appoint a person who had no qualifications for the post Such order could not have been passed with effect from back date when respondent No.6, who retrenched. The circumstances, in which the then Managing Director has passed the order dated 23.01.2006, need not be examined, as the appointment itself was cancelled by him, within three days i.e. on 25.1.2006, which was communicated to respondent No.6 - Braj Raj. When he stared entering the office of the Corporation, and started demanding that his attendance be taken and he should be allowed to sit in the chambers; and did not accept the request of the officers of the Corporation, not to interfere in the working of the Corporation, a report was lodged against him. The final report of the police was with regard to interference in the working of the Corporation by respondent no.6 and had nothing to do with the order cancelling his appointment. The Police Officer, while investigating the offence of interference in the official work, did not have authority to make observations or comments on the order of cancellation of appointment.
14. For the aforesaid reasons, we find that the orders of the Commission are wholly without jurisdiction. The Commission has no authority to issue any order, injunction, direction, or decree, which may be enforced by public authorities. The Commission has not been vested with the powers of issuing such orders, exercising the powers of the Court. The provisions of Article 338, of the Constitution of India and the U.P. Prevention of Atrocities of Scheduled Caste and Scheduled Tribes Act do not provide any such powers on the authorities under the Act.
15. The writ petition is allowed. The impugned orders dated 2.12.2008 and 24.11.2008, passed by the Director of National Commission for Scheduled Caste and Scheduled Tribes, State Office Lucknow are set aside. The respondent No.6 is restrained from entering into the office of the U.P. State Hand Loom Corporation Ltd., Kanpur Nagar, and to claim any service benefits from the Corporation. In case respondent No. 6, tries to enter the office of the Corporation, it will be open to the petitioner Corporation, to restrain him from entering into the office of the Corporation, and also to seek police help for preventing him to disturb the work of the Corporation.
Order Date :- 19.4.2012 nethra