Full Text
HIGH COURT OF DELHI
JUDGMENT
NATIONAL SEED CORPORATION LTD. ..... Petitioner
Through: Mr. Sudhir Kulshreshtha and Ms.Sushma Singh, Advocates.
Through: Ms. Padmini Gupta, Advocate for R-2
SANJEEV SACHDEVA, J.
1. By the present Writ Petition, the Petitioner National Seed Corporation Limited impugns the order dated 11.9.2000 of the National Commission for Scheduled Castes and Scheduled Tribes (hereinafter referred to as “the Commission”) 2013:DHC:2919 wherein the commission had directed the Petitioners to take back Respondent No. 2 Dharam Narain in the service of the Petitioner and further directed an enquiry to be constituted to probe into the circumstances under which he had been discharged from the service of the Petitioner Corporation.
2. The main issue that arises for consideration is the scope of the powers exercised by the Commission under Article 338 of the Constitution of India.
3. The Respondent No. 2 Dharam Narain was employed as a Chowkidar in the National Seed Corporation Limited. The Petitioner National Seed Corporation formulated a Voluntary Retirement Scheme (hereinafter referred to as VRS) for employees seeking to take voluntary retirement from the Corporation.
4. The Respondent No. 2 made an application dated 12.05.1994 seeking voluntary retirement from the employment of the Petitioner. The application was accepted by the Petitioners. The communication of acceptance of the application seeking voluntary retirement was issued on 13th July, 1994. The terminal benefits pursuant to the acceptance of the voluntary retirement were also paid and the Respondents No. 2 admits having received the same on 28.7.1994.
5. The Respondent No. 2 after the acceptance of his application and payment of the terminal benefits filed a Writ Petition being W.P. No. 122 (SS) of 1995 before the High Court of Allahabad, Lucknow Bench, against the Petitioners herein. After the filing of the counter affidavit by the Petitioners to the said Writ Petition explaining the factual position relating to the retirement of Respondent No. 2 under the Voluntary Retirement Scheme the Respondent No. 2 withdrew the said writ petition on 28.8.1995.
6. The Respondent No. 2 in February, 1998 approached the Industrial Tribunal, U.P., Lucknow and his case was registered as case No.2 of 1998. The said industrial dispute has been decided in favour of the Petitioners herein on 5.2.1999.
7. By way of a complaint made on 9.12.1999, i.e. after a gap of 5½ years of the acceptance on 12.5.1994 of the application seeking Voluntary Retirement, the Respondent No. 2 made a complaint to the National Commission for Schedule Caste and Schedule Tribe against the Petitioners.
8. The Respondent No. 1, National Commission for (hereinafter referred to as "the Commission"), vide the impugned order dated 11.09.2000 directed as under:- “10. In its letter dated 17.8.2000 NSC has desired to know whether further action as directed on 2.8.2000 to Shri Verma has to be taken simultaneously or it has to be considered after the result of vigilance inquiry by the Deptt. Of Agriculture and Cooperation. In view of the considerations explained in the preceding paragraphs, the undersigned has been directed to say that Shri Dharam Narain should be immediately taken back in the service of the National Seeds Corporation as gross injustice has been meted out to him while relieving him from the Corporation. Further an inquiry should be constituted to probe into the circumstances under which he has been discharged from the service of National Seeds Corporation by misusing the provisions of the VRS.”
9. Aggrieved by the order of the Commission dated 11.09.2000, the Petitioners have filed the present Writ Petition impugning the powers of the Commission to return a finding of misuse of provisions of VRS and to issue such a direction of reinstatement and for constitution of an inquiry.
10. It is the case of the Petitioner that subsequent to, but not as a consequence of, the order dated 11.09.2000 passed by the Commission, the Respondent No. 2 has been given a fresh employment. The learned counsel for the Petitioner submitted that the re-employment had been given on compassionate grounds and it is not a reinstatement pursuant to or as a sequitur to the order dated 11.09.2000 passed by the Commission.
11. Learned counsel for the Petitioner submitted that the Commission was not vested with the powers under Article 338 to decide service disputes or to issue direction of either temporary or permanent nature thereby directing the re-instatement of an employee or for directing Constitution and holding of an enquiry for any conduct/misconduct of an officer.
12. Learned counsel for the Petitioner further submitted that the Respondent No. 2 had voluntarily applied under the Voluntary Retirement Scheme and had duly accepted the terminal benefits. He contended that the complaint is way beyond the period of limitation inasmuch as the same has been filed after a gap of 5½ years from the date of the application seeking voluntary retirement. He further submitted that having accepted the terminal benefits under the Voluntary Retirement Scheme, the Respondent NO. 2 was estopped from raising any further dispute.
13. Learned counsel for the Petitioner contended that the Respondent No. 2 had already availed of his remedies by way of filing a Writ Petition in the High Court of Allahabad, Lucknow Bench, which was subsequently withdrawn and also the industrial dispute raised by him had been decided in favour of the Petitioners. Thus he submitted that the Respondent No. 2 was barred on the principles of res judicata from raising any further dispute qua his voluntary retirement.
14. The Counsel for the Petitioner though submitted that irrespective of the outcome of the present petition, the Respondent No. 2 who had been reemployed would not be disturbed from his reemployment and would be entitled to all benefits admissible in law as per the terms of his reemployment.
15. Learned counsel appearing for Respondent No. 2 controverted the submissions of the counsel for the Petitioner. Learned counsel for Respondent No. 2 referred to the impugned order to contend that no plea of lack of jurisdiction was raised before the Commission and as such the Petitioners were now precluded from raising such a plea.
16. Learned counsel for Respondent No. 2 further contended that Respondent No. 2 had never voluntarily applied under the Voluntary Retirement Scheme but the said scheme had been utilized by the Petitioner to get rid of Respondent No. 2.
17. As per the counsel for Respondent No. 2, the Voluntary Retirement Scheme was implemented on 27.05.1993 and applications were invited upto 31.03.1994. She further submitted that on 8.6.1994, the Voluntary Retirement Scheme was extended upto 31.8.1994 and as such as per her, between 1.4.1994 to 7.6.1994 there was no scheme in existence.
18. She contended that the voluntary retirement application had been made on 12.5.1994 but had been anti-dated to 31.3.1994. She further contended that the application of Respondent No. 2 was accepted on 28.4.1994 when no such scheme was in place and communication of acceptance was made on 13.7.1994 by which time, as per her, Respondent No. 2 had already applied for withdrawal of the application seeking voluntary retirement. She thus submitted that the impugned order was justified on merits.
19. The issue that is raised by the Petitioners is not mere justification on merits of the order but the scope of the powers exercised by the Commission under Article 338 of the Constitution of India.
20. To understand the scope of the powers exercised by the Commission, it may be necessary to look into the constitutional scheme of Article 338 of the Constitution of India.
21. At the time when the framing of the Constitution of India was being debated, the framing fathers of the Constitution proposed for an appointment of a Special Officer for the Scheduled Castes and Scheduled Tribes. The Special Officer was to be entrusted with the duty to make annual recommendations as to the steps that should be taken by the Union and by each State to improve the economic, educational and cultural level of the Scheduled Castes and Scheduled Tribes or of such other backward classes. The report to be submitted to the President along with the recommendations of the President were contemplated to be laid before the Parliament.
22. The Drafting Committee submitted to the President of the Constituent Assembly on 21st February, 1948 the draft of the new Constitution of India as settled by the Committee, the proposed Article 299 for appointment of a Special Officer was as Under:
23. The Article 299 as proposed by the Drafting Committee contemplated appointment of a Special Officer by the President for the minorities whose duty was to investigate all matters relating to safeguards provided for minorities and to report to the President upon the working of the safeguards and the President was to cause all such reports to be laid before the Parliament.
24. The proposed Article 299 was debated upon by the Constituent Assembly and was finally adopted as Article 338 as under: 338.(1) There shall be a Special Officer for the Scheduled Castes and Scheduled Tribes to be appointed by the President. (2) It shall be the duty of the Special Officer to investigate all matters relating to the safeguards provided for Scheduled Castes and Scheduled Tribes under this Constitution and report to the President upon the working of those safeguards at such intervals as the President may direct, and the President shall cause all such reports to be laid before each House of Parliament. (3) In this Article the reference to the shall be construed as including the reference to such other backward classes as the President may on receipt of the report of a Commission appointed under clause (1) of article 301 of the Constitution by order specify and also to the Anglo-Indian community.”
25. Article 338 as finally adopted by the Constituent Assembly stipulated appointment of a Special Officer by the President for the Schedule Caste and Schedule Tribes whose duty was to investigate all matters relating to safeguards provided for Schedule Castes and Schedule Tribes and to report to the President upon the working of the safeguards and the President was to cause all such reports to be laid before the Parliament.
26. With the objective of replacing the Special Officer with a high level five-member Commission for more effective arrangement in respect of the constitutional safeguards for Scheduled Castes and Scheduled Tribes, the Constitution (65th Amendment) Act, 1990 was enacted. The Amendment Act further elaborated the functions of the Commission so as to cover measures that should be taken by the Union or any State for the effective implementation of the safeguards and other measures for protection, welfare and socioeconomic development of the Scheduled Castes and Scheduled Tribes.
27. The Statement of Objects & Reasons of the Constitution (65th Amendment) Act, 1990, reads as under:- “THE CONSTITUTION (SIXTY- FIFTH AMENDMENT) ACT 1990 Statement of Objects and Reasons appended to the Constitution (Sixtyeighth Amendment) Bill, 1990 which was enacted as THE CONSTITUTION (Sixty-fifth Amendment) Act, 1990 STATEMENT OF OBJECTS AND REASONS Article 338 of the Constitution provides for a Special Officer for the Scheduled Castes and Scheduled Tribes to investigate all matters relating to the safeguards provided for the Scheduled Castes and Scheduled Tribes under the Constitution and to report to the President on their working. It is felt that a high level five-member Commission under article 338 will be a more effective arrangement in respect of the constitutional safeguards for Scheduled Castes and Scheduled Tribes than a single Special Officer as at present. It is also felt that it is necessary to elaborate the functions of the said Commission so as to cover 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 to entrust to the Commission such other functions in relation to the protection, welfare and development and advancement of the as the President may, subject to any law made by Parliament, by rule specify. It is also felt that the reports of the said Commission shall be laid before Parliament and the Legislatures of the States.
2. The Bill seeks to achieve the aforesaid objects.”
28. Article 338 of the Constitution, post amendment reads as under: “National Commission for Scheduled Castes and Scheduled Tribes."; 338.(1) There shall be a Commission for the Scheduled Castes and Scheduled Tribes to be known as the National Commission for the Scheduled Castes and Scheduled Tribes. (2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson and five other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may by rule determine. (3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal. (4) The Commission shall have the power to regulate its own procedure. (5) It shall be the duty of the Commission- (a) to investigate and monitor all matters relating the safeguards provided for the Scheduled Castes and Scheduled Tribes under this Constitution 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 reports 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 socioeconomic 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 proposed 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. (9) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Castes and Scheduled Tribes. (10) In this Article the reference to the shall be construed as including the reference to such other backward classes as the President may on receipt of the report of a Commission appointed under clause (1) of article 301 of the Constitution by order specify and also to the Anglo-Indian community."
29. Post the Constitution (65th Amendment) Act, 1990, the duties of the Commission were to investigate and monitor all matters relating to the safeguards provided for Scheduled Castes and Scheduled Tribes and to enquire into the specific complaints with respect to deprivation of rights and safeguards of Scheduled Castes and Scheduled Tribes and further to participate and advice on the planning process of Socio-economic development of the Scheduled Castes and Scheduled Tribes. The Commission had to present to the President, annually and at such other times, as the Commission may deem fit, reports upon the working of those safeguards. The Commission in the said reports had to make recommendations as to the measures that should be taken by the Union or the State for the effective implementation of those safeguards and other measures for the protection, welfare and the socio-economic development of the Scheduled Castes and Scheduled Tribes. Under Article 338, the Commission had to further discharge such other functions in relations 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. All reports of the Commission were to be laid before each House of the Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for non-acceptance, if any, of any such recommendations and similar provision was made with respect to the State Government where the report or any part thereof related to any matter with which any State Government was concerned.
30. Another major change brought about by the 65th Amendment to Article 338 was that it vested the Commission with all the powers of a Civil Court trying a suit, while investigating any matter referred to in Sub-clause „a‟ or enquiring into any complaint referred to in Sub-clause „b‟ of Clause 5 of Article 338.
31. The Constitution (89th Amendment ) Act, 2003, further amended the provision of Article 338 of the Constitution whereby a separate National Commission for Scheduled Tribes was setup by bifurcating the existing National Commission for Scheduled Castes and Scheduled Tribes. By the said amendment, the Constitution of the respective Commissions was also modified.
32. For the purposes of the present dispute, it is the scope of the powers as vested with the National Commission for Scheduled Castes and Scheduled Tribes which is relevant as the order impugned in the present petition was passed on 11.9.2000 by the then National Commission for Scheduled Castes and Scheduled Tribes prior to the bifurcation by the Constitution (89th Amendment) Act, 2003.
33. The main issue that arises for consideration is the scope of the powers vested with the National Commission for Scheduled Castes and Scheduled Tribes as conferred by Article 338 of the Constitution of India.
34. The Constitutional scheme of Article 338 clearly indicates that the Special Officer was vested with the power primarily to examine rights and safeguards of Scheduled Castes and Scheduled Tribes and to submit a report to the President with respect to the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes and Scheduled Tribes.
35. Though the Commission post the 65th Amendment has been vested with the power to examine instances and individual complaints but that investigation and enquiry is for the purposes of furtherance of the objective of the setting up of the Commission, i.e., for the purposes of investigation and monitoring all matters relating to the safeguards and for submission of a report to the President.
36. The powers vested with the Commission of enquiry and submission of report cannot be extended to adjudication of disputes between an individual and a corporation or a statutory authority. The powers conferred do not contemplate that the Commission can examine the matter like a Civil Court and adjudicate the dispute and pronounce a judgment either interim or final.
37. The Commission is not a Tribunal or a forum discharging the functions of a judicial character or a Court. Article 338 does not entrust the said Commission with the powers to take up the role of a Court or an adjudicatory tribunal and to determine the rights inter-se the parties.
38. No doubt, under clause 8 of Article 338, the Commission has been given all the powers of the Civil Court trying a suit but the said powers are to be exercised while investigating any matter referred to in sub – clause „a‟ or enquiry into any complaint referred to under sub-clause „b‟ of Clause 5.
39. The powers given to the Commission are procedural powers of a Civil Court for the purposes of investigating and enquiring into these matters and are limited for that purposes. The power conferred under Clause 8 of Article 338 do not confer the powers of a Civil Court of granting injunctions of temporary or permanent nature and for adjudicating and deciding disputes between parties like a court.
40. The Supreme Court in case of All India Indian Overseas Bank SC and ST Employees Welfare Association & Others v. Union of India & Ors. AIR (1996 ) 6 SCC 606 has laid down as under:- “10.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 infere in the Commission nor can such a power be inferred or derived from a reading of clause (8) of Article 338 of the Constitution.” (Emphasis Supplied)
41. No doubt, the Commission has been given the procedural powers of a Civil Court but the substantive powers of a Civil Court to adjudicate and decide disputes between the parties and to pronounce orders of final or interim nature have not been conferred by Article 338 under the Constitution of the Commission.
42. This Court in the case of Gulmarg Restaurant v. Delhi Development Authority 119 (2005) DLT 648 has laid down as under:
43. Further in the case of Indian Institute of Technology v. National Commission for Scheduled Castes and Scheduled Tribes and Anr. 111(2004) DLT 155 this Court has laid down as under:
16. The aforesaid is in fact no more res integra in view of the judgment of the Supreme Court in All India Indian Overseas Bank SC and St. Employees' Welfare Association and Others (1996) 6 SCC 606, where the Supreme Court observed in para 6 as under:
powers do not convert the Commission into civil court."
44. The Division Bench of this Court in Deepshikah Jiwan Pandit v. NCERT & ors. 2004 (73) DRJ 442 (DB) held as under:
agree with learned counsel for the Petitioner that what was advised by the Commission has been ignored by the Tribunal or the Tribunal or the NCERT.” (Emphasis supplied)
45. This Court in Professor Ramesh Chandra v. University of Delhi & Anr. (2007) ILR 2 Delhi 593 also held as under:
46. The Supreme Court of India in Collector v. Ajit Jogi, (2011) 10 SCC 357 has laid down as under:
22. It is only after recording the said findings, the Commission directed the State Government to verify the genuineness of the ST certificate obtained by the first Respondent and initiate action for cancellation of the certificate and also initiate criminal action. All these were unwarranted. As noticed above, the power under clause 5(b) of Article 338 (or under any of the other sub-clauses of clause 5 of Article
338) did not entitle the Commission to hold an inquiry in regard to the caste status of any particular individual, summon documents, and record a finding that his caste certificate is bogus or false. If such a complaint was received about the deprivation of the rights and safeguards, it will have to refer the matter to the State Government or the authority concerned with verification of caste/tribal status, to take necessary action. It can certainly follow up the matter with the State Government or such authority dealing with the matter to ensure that the complaint is inquired into and appropriate decision is taken. If the State Government or the authorities did not take action, the Commission could either itself or through the affected persons, initiate legal action to ensure that there is a proper verification of the caste certificate, but it cannot undertake the exercise itself, as has been done in this case.”
47. The submission of the learned counsel for the Respondent that the Voluntary Retirement Scheme was utilized to get rid of Respondent No. 2 does not hold much water inasmuch as there is no denial to the fact that a voluntary retirement application was, in fact, moved and the amounts towards terminal benefits have been received as far back as in July,
1994.
48. The Respondent No. 2 has not even preferred any proceedings impugning the action of the Petitioners in accepting the application of Respondent No. 2 under the Voluntary Retirement Scheme.
49. Since the National Commission for Schedule Caste and Schedule Tribe is not a Court or a Tribunal and the orders of the Commission are merely directory in nature, the Respondent No. 2 could not have approached the Commission for the redredssal of his grievance. The remedy lay elsewhere.
50. The fact that Respondent No. 2 was unsuccessful in getting appropriate relief from either the High Court or the Industrial Tribunal, the Respondent No. 2 was precluded from approaching the Commission for seeking redressal of his grievance.
51. The National Commission for Schedule Caste and Schedule Tribe clearly did not have the power to issue a mandate to the Petitioners to either reinstate the Respondent No. 2 back into service or to conduct an enquiry into the circumstances under which the Respondent No. 2 was discharged from the services of the Petitioner by alleged misuse of provisions of Voluntary Retirement Scheme, which clearly was beyond the Constitutional scheme of the powers conferred on the said Commission by Article 338 of the Constitution of India.
52. In view of the above, the Writ Petition is allowed and the impugned order dated 11.09.2000 is hereby quashed leaving the parties to bear their own costs.
53. The Petitioners are, however, bound down by their statement that the Respondent No. 2 who has been given fresh employment shall not be disturbed from his re-employment and would be entitled to all benefits admissible in law as per the terms of his re-employment.
SANJEEV SACHDEVA, J. May 30, 2013 sv