IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition No. 1287 of 2002. Date of decision: 26.3.2010. State of H.P. ….. Petitioner. Vs. National Commission for Scheduled Castes & Scheduled Tribes & anr. …. Respondents. Coram The Hon’ble Mr. Justice Dev Darshan Sud, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. P.K.Sharma, Addl. Advocate General with Mrs. Sub Mahajan, Deputy Advocate General. For the Respondents : Mr. N.K.Thakur, Advocate, for respondent No.1. Dev Darshan Sud, Judge (Oral). Notices of this writ petition were issued to the legal representatives of deceased respondent No. 2 Sh. G.C.Kaushal. They have been served on 26.2.2010. Nobody appears on their behalf. 2. The crux of the grievance of petitioner- State herein is that respondent- Commission, which has been constituted under Article 338 of Constitution of India has exceeded its jurisdiction in passing the orders, which are individually specific namely the complaints instituted by late Sh. G.C.Kaushal, who was an IPS Officer Whether the reporters of the local papers may be allowed to see the Judgment? yes …2… serving in the State of Himachal Pradesh. His grievances as made out from the complaint(s) filed by him are that he was not provided police protection and that his annual confidential reports etc. had not been written in accordance with law thereby depriving him of his chance of further promotion. The record of the writ petition is voluminous. We find that the Commission is passing orders from time to time and the queries raised or directions issued in the orders have been explained by the State and particularly the statement of Harsh Gupta, Chief Secretary of the State is revealing. Before the Commission, he answered each and every query which has been put to him and informed the Commission that the matter was either subjudice or that the direction had been complied with. Sh. Kaushal was not satisfied with the statement made by Harsh Gupta, Chief Secretary of the State before the respondent- Commission, therefore, he again filed petition before the Commission asking for redressal of his grievance. On 9.7.2002, another order was passed by the Commission directing the State as under:- i) Drop the proceedings dated 8.5.2002. ii) Drop the review proceedings for compulsory retirement of the petitioner. iii) Drop the proceedings dtd. 28.1.1997 in the light of observations made by the Hon’ble Tribunal in their order dtd. 6.3.1998 . iv) Register/ investigate FIR ordered on 13.2.1997 by this commission and also directed by the Hon’ble tribunal, New Delhi vide above mentioned order. v) Promote the petitioner to the grades of DIG Police w.e.f. 1.1.1991, IGP w.e.f. 1.1.1994, Addl. DGP w.e.f. 18.10.1996 and DGP w.e.f. 27.3.1998 with all consequential benefits and post him on a cadre …3… post as mentioned in the schedule. This has to be done in terms of directions of the Hon’ble Tribunal issued vide orders dated 6.3.1998 and Commission’s order dated 15.7.1999. vi) Pass fresh orders of re-instatement of the petitioner after granting promotions as above, on a cadre post declaring the entire period as official duty.” 3. Subsequently by another communication Annexure P-26, the Commission writes to the State in the following terms:- “Kindly refer to proceeding/ Findings/ Ordersheet dated 9/7/02 in the matter of Enforcement of SC/ST Prevention of Atrocities Act; Protection of Civil Rights Act and other service Safeguards in respect of G.C.Kaushal IPS (HP.77). The Undersigned has been directed by the Hon’ble Member Shree Vijay Kumar Choudhary to convey to you that in the process of reviewing the case of the Petitioner G.C.Kaushal. It has been decided to withdraw the above proceedings/ Findings/ Orders. You are, therefore, requested to kindly to treat above Proceedings/ Findings/ Orders as withdrawn. With regards.” 4. However, again the petitioner makes a request on 15th July 2002 to the Commission for sending a copy of the decision taken by it in the process of reviewing the case of late G.C.Kaushal. The letter Annexure P-27 is being reproduced in extenso :- “FAX MESSAGE No.Home-D(B-3)-61/78-Vol.VI(Part file) Government of Himachal Pradesh Department of Home (Section-D). Dated Shimla-171002, the 15th July, 2002. From The Chief Secretary to the Government of Himachal Pradesh. To Shri Satyendra Kumar, Private Secretary to Member Shri V.K.Choudhary, …4… National Commission for SCs & STs, 5th Floor Lok Nayak Bhawan, Khan Market, New Delhi- 110002. Sub: Representation dated 6.1.1997 from Shri G.C.Kaushal IPS, AIG, Police (Railway & Traffic, H.P. Shimla. Sir, I am directed to refer to your FAX message No. NIL, dated 15/7/2002, on the subject cited above and to request that the signed copy of the decision taken by the Hon’ble Commission in the process of reviewing the case of the Petitioner Shri G.C.Kaushal may kindly be sent to this State Government by return message for record. The Resident Commissioner, H.P. Govt., New Delhi is also being requested to depute some official from his office to collect the signed and certified copy of the orders/ proceedings passed by the Hon’ble Commission in the case of Shri G.C. Kaushal, IPS. Today on 15.07.2002, to further transmit the same to the State Government. Yours faithfully, Sd/- Secretary (Home) to the Government of Himachal Pradesh. Endst.No.Home-D(B-3)-61/78-Vol-VI(Part File) dated 15/7/2002. Copy forwarded to the Resident Commissioner, H.P. Government, New Delhi, with the request that some official from his office may be deputed/ authorized to collect the signed and certified copy of the orders/ proceedings passed by the Hon’ble National Commission, SCs and STs, New Delhi from the above referred office and sent the same to the State Government by return FAX/ Courier Service, by today positively. Sd/- Secretary (Home) to the Government of Himachal Pradesh.” 5. By another communication dated 19th July, 2007 the Commission says that the Commission had only acceded to the request for grant of extension of time by two weeks and orders dated 9.7.2002 should be complied. …5… 6. Apart from the fact that the Commission has exceeded its jurisdiction in passing contradictory orders, we do not find that Commission had the jurisdiction to entertain the complaints made by the deceased respondent with respect to his service career. The power of the Commission was considered by the Hon’ble Supreme Court in All India Indian Overseas Bank SC and ST Employees’ Welfare Association and others vs. Union of India & others (1996) 6 SCC 606. The Supreme Court while dealing with the controversy before it, which was as to whether the Commission has the power to issue direction in the nature of interim injunctions, held in paragraphs No. 3, 4, 5 and 6 of the judgement, as under:- “3. The short question that arises for consideration in this matter is whether the Commission had the power to issue a direction in the nature of an interim injunction? The appellant supports the letter dated March 4, 1993 of the Commission on the facts of the case which supposedly justify the passing of an interim direction of the type contained in the letter dated March 4, 1993. The appellant refers to Article 338, clauses (5) and (8), of the Constitution introduced by the Constitution (Sixty Fifth Amendment) Act, 1990 to argue that the Commission had power to requisition public record and hence it could issue directions as if it enjoyed powers like a civil court for all purposes. Further the appellant contends that even a single member of the Commission has every authority to pass a direction on behalf of the entire Commission and hence the High Court was wrong in expressing the view that a single member of the Commission could not have issued the direction contained in the letter dated March 4, 1993. The appellant further contends that no writ would lie against an interim order of the Commission. 4. The basic question, however, is whether the Commission had the authority to issue the direction it did by the letter dated March 4, 1993. Clauses (5) and (8) of Article 338 of the Constitution, which the appellant refers to as the source of the Commission's power, can be quoted for ready reference: …6… `(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 socio- economic 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:- …7… (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,’ 5. It can be seen from a plain reading of clause 8 that the Commission has the power of the Civil Court for the purpose of conducting an investigation contemplated in sub-clause (a) and an inquiry into a complaint referred to in sub-clause (b) of Clause 5 of Article 338 of the Constitution. 6. Sub-clauses (a) to (f) of clause (8) clearly indicate the area in which the Commission may use the powers of a Civil Court. The Commission has the power to summon and enforce attendance of any person from any part of India and examine him on oath; it can require the discovery and production of documents, so on and so forth. All these powers are essential to facilitate an investigation or an inquiry. Such powers do not convert the Commission into Civil Court.” 7. The Supreme Court considered the power of the Commission and concluded:- “Interestingly, here, in clause 8 of Article 338, 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. 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 …8… 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.” 8. We find that the Commission has acted beyond the powers conferred on it by the constitution. In case respondent No. 2 was aggrieved by any order passed during his service tenure, surely the remedy was to have approached a court of competent jurisdiction for redressal. We find from the statement of Sh. Harsh Gupta that most of the complaints made by him had been adjudicated by the competent court i.e. the Central Administrative Tribunal or the Delhi High Court. In these circumstances, if the respondent was aggrieved by any order he could have filed an appeal or instituted other proceedings. So far as the question of providing personal protection is concerned, we find this relief no longer survives. We need not say anything more. We accordingly, accept this writ petition and quash Annexure P-25 as being ultra-vires the provisions of the Constitution. 9. Another point was raised by the learned Additional Advocate General and i.e. that the Commission is a multi-member Commission and it is not open to a single member to have passed the orders. We are not going into that controversy. We hold that the jurisdiction of the Commission under Article 338 of Constitution of India is confined only to cases envisaged therein and the Commission cannot take over the jurisdiction either of a Tribunal or a Court. 10. This writ petition is allowed. There shall be no order as to costs. …9… 11. This order shall not preclude the legal –representatives of deceased respondent from claiming any service benefits, which may have accrued to the deceased during his life time. It will be open to them to agitate their grievance before a court of competent jurisdiction. ( Dev Darshan Sud ), Judge. March 26, 2010. ( Kuldip Singh ), (Hem) Judge.