IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (PIL) No. 129 of 2019
Pankaj Kumar …Petitioner
Vs.
State of Uttarakhand and others …Respondents
Mr. M.C. Pant and Mr. C.K. Sharma, learned counsel for the petitioner.
Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand-respondents
1 and 5.
Mr. Lalit Sharma, learned Standing Counsel for the Union of India-respondents 2 and
3.
Mr. Rakesh Thapliyal, learned Special Counsel for the Special Investigating Team.
Mr. A.S. Rawat, learned Senior Counsel assisted by Ms. Charanjeet Kaur, learned
counsel for the tenth respondent.
Judgment Reserved : 11.09.2019
Judgment Delivered : 17.09.2019
Chronological list of cases referred:
1. (1996) 6 SCC 606
2. (2010) 4 SCC 368
Coram : Hon’ble Ramesh Ranganathan, C.J.
Hon’ble Alok Kumar Verma, J.
Ramesh Ranganathan, C.J.
In this Writ Petition, filed in public interest, the petitioner
seeks a writ of certiorari to quash the order dated 02.07.2019; and a writ
of prohibition directing the National Commission for Scheduled Tribes
not to proceed further in relation to the representation, filed by the tenth
respondent, dated 02.07.2019.
2. Facts, to the limited extent necessary, are that W.P. (PIL)
No. 228 of 2018 was filed seeking a writ of mandamus to appoint the
CBI, or to initiate a judicial inquiry, for taking appropriate action in
accordance with law; and to also monitor and supervise the entire
investigation pursuant to the inquiry report dated 27.03.2017, and the
letters dated 28.12.2017 and 18.07.2016, so that the culprits may be
punished in accordance with law. In the said Writ Petition, the petitioner
had alleged that a huge scam, involving various education institutions in
the State of Uttarakhand, had resulted in several hundred crores of rupees
of public funds, meant to be paid as scholarships to scheduled caste and
scheduled tribe students, was swindled by these institutions; they, along
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with brokers and touts, had siphoned-off several hundred crores of rupees
earmarked as scholarship for these socially and educationally backward
class students belonging to the Scheduled Castes and the Scheduled
Tribes category; and the entire issue was now sought to be hushed up by
senior bureaucrats and ministers in the State Government.
3. In its order in W.P. (PIL) No.228 of 2018 dated 14.12.2018,
a Division Bench of this Court had noted the contents of the report of the
Additional Secretary, Social Welfare Department dated 27.03.2017 which
disclosed that even on a random sampling, for the years 2011-2012 to
2014-2015, of the scholarship amounts paid to the Scheduled Caste
students, in the two districts of Dehradun and Haridwar, serious financial
irregularities had come to light; and it was necessary for a detailed
inquiry to be caused, on this extremely serious issue, by a High Power
Committee.
4. The attention of the Division Bench was also drawn to the
noting of the Additional Secretary, Social Welfare Department dated
10.08.2017 recommending that investigation be entrusted to the Central
Bureau of Investigation; and to certain other notings in the Government
files to contend that the Additional Secretary, who had submitted the
report dated 27.03.2017, was now sought to be removed from the inquiry
and, in his place, certain other officers were brought in only to hush-up
the entire matter. Reliance was placed, on behalf of the petitioner, on
certain compromise-deeds whereby some of the educational institutes had
agreed to pay the broker 40% of the amount they received from the
Government towards scholarship for students belonging to the Scheduled
Castes and the Scheduled Tribes.
5. While taking note of the fact that the Chief Minister had, in
April 2017, directed an inquiry to be caused by the SIT, and for it to be
completed within three months, the Division Bench had observed that the
very fact that no investigation had commenced thereafter till FIR No.
0496 was registered on 01.12.2018, i.e. after more than 20 months, was a
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matter of concern. The Chief Secretary, Government of Uttarakhand was
requested to examine the issue, and to submit a report to this Court, after
causing a preliminary inquiry into the allegations made in the report of
the Additional Secretary, Social Welfare Department dated 27.03.2017
and his subsequent noting dated 10.08.2017, within three weeks
indicating the time-frame within which the investigation would be caused
and completed by the SIT headed by the seventh respondent; whether the
SIT was capable of investigating a scam spread over five States; and
whether the matter should, instead, be handed over to the Central Bureau
of Investigation to cause investigation, into these allegations, with utmost
expedition.
6. In its order in W.P. (PIL) No.228 of 2018 dated 04.01.2019,
the Division Bench took note of the contents of the affidavit of the Chief
Secretary to the Government of Uttarakhand that, from out of the
conclusion drawn on seven points in the Inquiry Officer’s report dated
27.03.2017, the Additional Chief Secretary had held that five conclusions
could not be proved; in respect of conclusion No. 3, pertaining to
admission of students through agents/middlemen and who had got signed
the withdrawal forms/cheques from students, the said conclusion/charge
could only be verified after investigation by the SIT; if conclusion No. 3
was proved in the inquiry by the SIT, then action would be initiated
against the Sub-Divisional Magistrate who had conducted the physical
verification; and conclusion No. 1, pertaining to attendance of students,
was partially proved. With regards conclusion No. 1, the Additional Chief
Secretary had stated in his report that the statements of around 18
students were recorded, of which one student had put in attendance of
55%, and all the others were absent; and yet scholarships were paid to
them.
7. In its order in W.P. (PIL) No.228 of 2018 dated 04.01.2019,
the Division Bench expressed surprise that, even on the basis of the
findings recorded by him, the Additional Chief Secretary should hold that
the conclusion was partially not proved; and it was not known how
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payment of scholarships to 17, of the 18 students, who were absent
throughout their course, would justify the conclusion that the charge was
partially not proved. The Division Bench had, thereafter, noted the
submission of the in-charge of the SIT that, despite several letters having
been addressed by him to the District Social Welfare Department and the
Joint Director, no response was forthcoming necessitating his having to
register an FIR based on the documents received from the private
individuals examined by him.
8. While expressing its suspicion that attempts were being
made by certain officials of the Social Welfare Department to stonewall a
probe into these grave and serious allegations of misappropriation of
public funds, the Division Bench had observed that non-cooperation by
the Social Welfare Department was a matter of grave and serious concern,
since the very purpose of constituting the SIT, to investigate into this
scam of monumental proportions, would be defeated thereby.
9. In its order in W.P. (PIL) No.228 of 2018 dated 09.01.2019,
the Division Bench, after taking note of the attempts made by the
Government to change Dr. T.C. Manjunath as the Chairman of the SIT,
opined that the change in the SIT was only to stonewall a probe into the
grave and serious allegations of misuse and misappropriation of public
funds. The SIT, headed by Dr. Manjunath, Superintendent of Police, was
directed to continue with its investigation; and the concerned officials in
the Social Welfare Department and elsewhere in the Government of
Uttarakhand, as also the private institutions, were directed to extend full
co-operation to the investigation being caused by the SIT, and not to
cause any hindrance thereto.
10. In our order, in W.P. (PIL) No.228 of 2018 dated
29.08.2019, we had observed that the investigation, directed to be caused
into this scam allegedly running into several hundred crores, did not
brook delay; amounts, meant to be paid as scholarship to students
belonging to the Scheduled Castes and the Scheduled Tribes, were
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allegedly misappropriated by the college management, middlemen, and
some government officials; the Scheduled Castes and the Scheduled
Tribes students belonging to the State of Uttarakhand, and studying in
several private colleges both within the State of Uttarakhand and in five
other States, were deprived of the scholarships to which they were
entitled to; copies of the agreements, placed on record, indicated that the
loot was agreed to be shared, in the ratio of 60:40, between the colleges
and the middlemen; and the lack of progress in investigation, into such a
grave and serious matter, was disconcerting.
11. We had, thereafter, directed Mr. Sanjay Gunjyal, Inspector
General of Police and head of the SIT for the entire investigation, (apart
from Dehradun and Haridwar districts), to constitute necessary teams to
visit every college, verify the records, identify the students to whom the
colleges had allegedly claimed to have paid the scholarships, ascertain
whether or not the students, to whom scholarships were alleged to have
been paid, had ever studied in the said colleges, interview the students to
ascertain whether they had received the amounts, and identify the errant
colleges, middlemen and government officials, involved in the scam
allegedly running into more than Rs. 500 crores.
12. The SIT, headed by Dr. T.C. Manjunath, Superintendent of
Police, registered FIR No.0496 of 2018 in SIDCUL Police Station,
Haridwar. The tenth respondent herein filed Writ Petition (CRL) No. 774
of 2019 on 21.05.2019 seeking a writ of certiorari to quash FIR No.
0496/2018 registered under Section 420/120-B/408/409 IPC and Section
13(1) read with Section 13(2) of the Prevention of Corruption Act; and a
writ of mandamus directing the respondents not to arrest him in FIR No.
0496 of 2018. In the affidavit, filed in support of W.P. (CRL) No.774 of
2019, the tenth respondent herein specifically referred to W.P. (PIL) No.
228 of 2018 filed before this Court; and questioned the competence of the
Investigating Officer to investigate into the complaint.
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13. On W.P. (CRL) No.774 of 2019 being listed before him on
27.05.2019, a learned Single Judge of this Court, in his order dated
27.05.2019, recorded the submission of the State Counsel that all matters,
arising from FIR No. 0496/2018 in SIDCUL Police Station, Haridwar,
were being heard along with W.P. (PIL) No. 228 of 2018, and directed
that the matter be listed before the appropriate Bench. Questioning the
said order, the tenth respondent herein filed Special Leave to Appeal
(Crl.) No. 5169 of 2019. In its order dated 10.06.2019, the Supreme Court
opined that it found no ground to interfere at that stage, and dismissed the
Special Leave Petition making it clear that the application filed by the
petitioner therein (tenth respondent herein) in the High Court for interim
protection be considered and disposed of on its own merits as
expeditiously as possible.
14. The petitioner (tenth respondent herein), thereafter,
submitted a representation dated 02.07.2019 to the National Commission
for Scheduled Tribes and, by its order passed on the same day i.e.
02.07.2019, the National Commission, while informing various officials
including the Superintendent of Police, Haridwar (head of the SIT for
Dehradun and Haridwar districts) to submit facts and information in the
matter, and the action taken on the allegations/matters, to the Commission
within 07 days of receipt of the notice for appraisal of the Chairman of
the Commission, also informed that the Chairman of the Commission
desired that no action be taken against the tenth respondent herein as the
matter was under examination. They were also informed that, in case the
Commission did not receive the reply from them within the stipulated
time, it may exercise the powers of a Civil Court, conferred upon it under
Clause (8) of Article 338A of the Constitution of India, and issue
summons for their appearance in person before the Commission.
15. As a result of the order passed by the Commission, no action
was taken thereafter against the tenth respondent herein. In his affidavit
dated 20.08.2019, filed before this Court in W.P. (PIL) 228 of 2018, Dr.
7
T.C. Manjunath, head of the SIT (for Dehradun and Haridwar districts)
stated as under :
“It is submitted that Shri Geetaram Nautiyal had filed
S.L.P. bearing no. 5169/2019 before the Hon’ble Supreme
Court of India for interim protection. But the same has been
dismissed by the Hon’ble Supreme Court without any relief.
In this regard a true/photocopy of the order dated 10.06.2019
is being filed herewith and marked as Annexure No. 6 to this
affidavit.
It is submitted that despite this Shri Geetaram
Natuiyal, then District Social Welfare Officer, Haridwar has
never appeared in front of investigation officer for
questioning and statement recording.
It is submitted that thereafter Shri Geetaram Nautiyal
then District Social Welfare Officer, Haridwar had filed a
representation before the National Commission for Schedule
Tribes, New Delhi bearing File No. GN /1 /2019 /STGUL
/SEHRMT /RU-1 dated 02.07.2019.
It is further submitted that in this regard the
investigation officer received an order dated 02.07.2019
from National Commission for Schedule Tribes, New Delhi
whereby the Hon’ble Commission has directed that no action
to be taken against Shri Geetaram Nauthiyal. In this regard a
true/photocopy of the order dated 02.07.2019 passed by
Hon’ble National Commission for Schedule Tribes, New
Delhi is being filed herewith and marked as Annexure No. 7
to this affidavit.
It is further submitted that the police investigation
officer is unable to proceed further against Shri Geetaram
Nautiyal and conduct further investigation because of the
aforesaid order.
Further progress will be apprised to the Hon’ble Court
in the future.”
16. After taking note of the petitioner’s contention that the
request of the Chairman of the Commission, in the impugned proceeding
dated 02.07.2019, was without jurisdiction, as no power was conferred on
him, under Article 338A of the Constitution of India, to issue any such
directions to the officials concerned, we had issued notice to all the
respondents in the Writ Petition. Despite service of notice on them,
neither the Commission, nor its Chairman and its members, have entered
appearance through counsel nor are they present in Court today.
8
17. The tenth respondent is, however, represented by Mr. A.S.
Rawat, learned Senior Counsel. As it is on his complaint, that the
impugned proceedings dated 02.07.2019 were issued by the National
Commission, we heard the submissions of both Mr. M.C. Pant, learned
counsel appearing on behalf of the petitioner and Mr. A.S. Rawat, learned
Senior Counsel appearing on behalf of the tenth respondent, on the
jurisdiction of the National Commission for Scheduled Tribes to issue
interim directions by its proceedings dated 02.07.2019.
18. Mr. M.C. Pant, learned counsel appearing on behalf of the
petitioner, would submit that, unlike Superior courts i.e. the Supreme
Court and the High Courts which are Courts of Record and the power of
judicial review conferred on them is a part of the basic structure of the
Constitution of India, the National Commission for the Scheduled Tribes
is a body created under Article 338-A(1) of the Constitution of India, and
its powers and functions are confined to matters specified in Article 338-
A; the duties of the Commission are prescribed in clause (5) of Article
338-A; the powers of the Civil Court, trying a Suit, are conferred on the
Commission only to investigate the matter referred to in clause (a), and
inquire into any complaint referred to in Clause (b) of Article 338-A(5);
in the absence of a specific provision conferring power on it to pass
orders of injunction, the National Commission lacked jurisdiction to pass
the order impugned in the Writ Petition; and since the impugned order
dated 02.07.2019 suffered from lack of jurisdiction, it was liable to be setaside.
19. Mr. M.C. Pant, learned counsel appearing on behalf of the
petitioner, would further submit that the 10th respondent herein had
deliberately suppressed relevant and material facts, before the National
Commission, of his having filed Writ Petition (CRL) No.774 of 2019
before this Court seeking a mandamus directing the respondents not to
arrest him; the 10th respondent had also failed to disclose to the National
Commission the fact that he had, thereafter, approached the Supreme
Court by filing Special Leave to Appeal (Criminal) No.5169 of 2019,
9
and that he had approached the National Commission, by filing the
representation dated 02.07.2019, only after the Supreme Court had
dismissed the Special Leave to Appeal by its order dated 10.06.2019; in
his representation dated 02.07.2019, the 10th respondent had suppressed
the fact that he had filed Writ Petition (CRL) No.774 of 2019 before this
Court or of the Special Leave to Appeal (Criminal) preferred by him
having been dismissed by the Supreme Court; he had surreptitiously
obtained orders from the National Commission suppressing relevant and
material facts; the impugned order of the National Commission dated
02.07.2019 tends to interfere with the investigation caused by the SIT
which, in turn, is being monitored by this Court; the impugned order
dated 02.07.2019, in effect, interferes with the administration of justice,
since it prohibits investigation being caused against the 10th respondent,
and thereby interferes with the various orders passed by this Court in
W.P. (PIL) No.228 of 2018; and the impugned order passed by the
National Commission dated 02.07.2019 must, therefore, be set-aside.
20. On the other hand Mr. A.S. Rawat, learned Senior Counsel
appearing on behalf of the 10th respondent, would submit that, in terms of
Clause (4) of Article 338(A) of the Constitution, the Commission has the
power to regulate its own procedure; it had, in the exercise of such a
power, framed Rules of Procedure, which were notified on 17.09.2004;
clauses (a) to (f) of Paragraph 3 of the said Rules enumerates the
functions and responsibilities of the National Commission as laid down in
the Constitution; clauses (a) to (f) thereunder are those specified in
clauses (a) to (f) of Article 338(A)(5) of the Constitution; the power of
the National Commission, to pass the impugned order dated 02.07.2019,
is traceable to sub-clauses (a), (b) and (f) of Article 338(A)(5) of the
Constitution, and clauses (a), (b) and (f) of Paragraph 3 of the Rules of
Procedure; such a power is also traceable to Paragraph 29 of the Rules of
Procedure; since the matter is seized by it, the National Commission has
the inherent power to pass interim orders; and the impugned order does
10
not necessitate interference in proceedings under Article 226 of the
Constitution of India.
21. By the Constitution 65th Amendment Act, 1990, Article 338
of the Constitution was substituted w.e.f. 12.03.1992 providing for the
constitution of a National Commission for the Scheduled Castes and the
Scheduled Tribes. By the Constitution 89th Amendment Act, 2003,
Article 338(A) was inserted and Article 338 of the Constitution was
amended w.e.f. 19.02.2004. Prior to the 89th Amendment, there was a
common National Commission for both the Scheduled Castes and the
Scheduled Tribes. However, with the insertion of Article 338(A), separate
National Commissions now exist, one for the Scheduled Castes and the
other for the Scheduled Tribes. The duties enumerated in sub-clauses (a)
to (f) of clause (5) of Article 338 of the Constitution are in pari-materia
with the duties enumerated in sub-clauses (a) to (f) of Article 338-A(5) of
the Constitution.
22. Clauses (a), (b) and (f) of Paragraph 3 of the Rules of
Procedure are those specified in sub-clauses (a), (b) and (f) of Clause (5)
of Article 338A of the Constitution. The powers of a Civil Court trying a
Civil Suit, conferred on the National Commission under Article 338A (8),
are, as is evident from the language employed by the said clause,
available to the Commission only while investigating the matter referred
to in sub-clause (a), or to inquire into any complaint referred to in subclause (b) of clause (5) of Article 338A of the Constitution. The scope
and ambit of very same provision (albeit as it stood before the
Constitution 89th Amendment Act, 2003) was considered by the Supreme
Court.
23. In All India Overseas Bank SC and ST Employees’
Welfare Association & others vs. Union of India & others1
, the
National Commission for the Scheduled Castes and the Scheduled Tribes
had, by its letter dated 04.03.1993, directed the Executive Director of the
Indian Overseas Bank to stop the promotion process pending further
11
investigation and final verdict in the matter. While examining the
question whether the National Commission for the Scheduled Castes and
the Scheduled Tribes had the power to issue a direction, in the nature of
interim injunction, the Supreme Court observed:-
“…..The basic question, however, is whether the Commission
had the authority to issue the direction it did by the letter dated 4-3-
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:
“(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 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
12
recommendations relating to the State and the reasons for the nonacceptance, 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 subclause (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.”
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.
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…..
……..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 subclause (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…..”
(emphasis supplied)
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24. Again in State Bank of Patiala & others vs. Vinesh
Kumar Bhasin2
, the Supreme Court, while examining the power of the
Chief Commissioner to pass an interim order under the provisions of the
Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995, observed:-
“……Section 63 provides that the Chief Commissioner and the
Commissioners shall, for the purpose of discharging their functions
under this Act, have the same powers as are vested in a court under the
Code of Civil Procedure, 1908 while trying a suit, in regard to the
following matters:
“63. (a) summoning and enforcing the attendance of witnesses;
(b) requiring the discovery and production of any document;
(c) requisitioning any public record or copy thereof from any court
or office;
(d) receiving evidence on affidavits; and
(e) issuing commissions for the examination of witnesses or
documents.”
Rule 42 of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Rules, 1996 lays down the
procedure to be followed by the Chief Commissioner.
It is evident from the said provisions, that neither the Chief
Commissioner nor any Commissioner functioning under the
Disabilities Act has power to issue any mandatory or prohibitory
injunction or other interim directions. The fact that the Disabilities
Act clothes them with certain powers of a civil court for discharge of
their functions (which include the power to look into complaints),
does not enable them to assume the other powers of a civil court
which are not vested in them by the provisions of the Disabilities Act.
In All India Indian Overseas Bank SC and ST Employees’ Welfare
Assn. v. Union of India1, this Court, dealing with Article 338(8) of the
Constitution of India (similar to Section 63 of the Disabilities Act),
observed as follows: (SCC pp. 609 & 611, paras 5 & 10)
“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.
* * *
10. … 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
14
power be inferred or derived from a reading of clause (8) of
Article 338 of the Constitution.”
The order of the Chief Commissioner, not to implement the
order of retirement, was illegal and without jurisdiction…….”
(emphasis supplied)
25. In the light of the law laid down by the Supreme Court, in
All India Overseas Bank SC and ST Employees’ Welfare
Association1
, the powers of a Civil Court conferred on the National
Commission for the Scheduled Tribes, under sub-clauses (a) to (f) of
Clause 8 of Article 338-A of the Constitution, are the powers to summon
and enforce attendance of any person from any part of India, and to
examine him on oath; and to require the discovery and production of
documents etc. These powers were conferred on the Commission as they
were essential to facilitate an investigation or an inquiry; such powers did
not convert the Commission into a Civil Court; the powers of the Civil
Court can be exercised by the Commission while investigating the matter
referred to in sub-clause (a) or inquiring into any complaint referred to in
sub-clause (b) of clause 5; 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; and the
power of a Civil Court to grant injunctions, temporary or permanent, did
not inhere in the Commission nor could such a power be inferred or
derived from a reading of clause (8) of Article 338 (or for that matter
clause 8 of Article 338-A) of the Constitution.
26. In the light of the law declared by the Supreme Court, in All
India Overseas Bank SC and ST Employees’ Welfare Association1
,
the National Commission for the Scheduled Tribes lacks jurisdiction to
pass the impugned order dated 02.07.2019 whereby the desire of the
Chairman, that no action be taken against the 10th respondent herein as
the matter was under examination by the Commission, was conveyed to
various officials of the Government of Uttarakhand. Though couched as a
request, the said letter dated 02.07.2019 is, in fact, an order in the nature
of a temporary injunction restraining the officials, which included the
15
Superintendent of Police, Haridwar, from taking any action against the
10th respondent. As no such power is available to be exercised by the
National Commission for the Scheduled Tribes, the impugned order dated
02.07.2019 is without jurisdiction, and is liable to be set-aside on this
score.
27. Clause (f) of Article 338-A(5), (which is what is specified in
clause (f) of Paragraph 3 of the Rules of Procedure of the National
Commission for Scheduled Tribes), prescribes, as the functions and
responsibilities of the Commission, the duty to discharge such other
functions in relation to the protection, welfare and development and
advancement of the Scheduled Tribes as the President may, subject to the
provisions of any law made by Parliament, by rule specify. The power
conferred on the President to specify by way of Rules is made subject to
the provisions of any law made by Parliament. No Rule made by the
President, or any law made by Parliament, conferring power on the
National Commission for the Scheduled Tribes to pass orders of
injunction, temporary or permanent, have been brought to our notice. In
the absence of any such Rule or Law having been made, reliance placed
on clause (f) of Article 338-A(5) of the Constitution, or on clause (f) of
Paragraph 3 of the Rules of Procedure, is misplaced.
28. Paragraph 29 of the Rules of Procedure, on which great
stress is placed by Mr. A.S. Rawat, learned Senior Counsel appearing on
behalf of the 10th respondent, stipulates that, where the property,
service/employment of the Scheduled Tribes and other related matters are
under immediate threat, and the prompt attention of the Commission is
required, the matter shall be taken cognizance, by issuing a telex/fax to
the concerned authority, making it known to them that the Commission is
seized of the issue; urgent reply by telegram or fax shall be called from
the concerned authority; and in case no reply is received within ten
working days, the authority concerned may be required to appear before
the Commission at a shorter notice for enquiry. All that Paragraph 29 of
the Rules of Procedure enables the Commission to do is to take
16
cognizance merely by issuing a telex/fax, and to call for an urgent reply,
by telegram or fax, from the concerned authority; and, in case, no
response is forthcoming, to direct the authority to appear before the
Commission for inquiry. Paragraph 29 of the Rules of Procedure does not
confer any power on the Commission to pass orders of injunctiontemporary or permanent. Reliance placed on behalf of the 10the
respondent, on Paragraph 29 of the Rules of Procedure, is also misplaced.
29. In 2016, the National Commission for the Scheduled Tribes
prescribed the procedure for inquiry and, in terms thereof, certain aspects
were required to be kept in mind while filing a complaint before the
Commission. Among the aspects referred to are that no action would be
taken on matters which are subjudice; and hence sub-judice matters need
not be referred as a matter of complaint. Despite the fact that the 10th
respondent had, in his representation dated 02.07.2019, referred to the
pendency of W.P. (PIL) No.228 of 2018 before this Court, the National
Commission, contrary to its own procedure, has entertained the 10th
respondent’s compliant, and has passed the impugned order dated
02.07.2019. While this act of the National Commission does appear to us
to interfere with the proceedings pending before us in W.P. (PIL) No.228
of 2018, and can be construed as a disguised attempt to interfere with the
administration of justice by this Court, justifying the Chairman and
Members of the Commission being called upon to show-cause why action
for criminal contempt should not be initiated against them under the
Contempt of Courts Act, we refrain from doing so bearing in mind that
the National Commission for the Scheduled Tribes, a body created under
Article 338(A) of the Constitution of India, may, having regards to its
Constitutional status, be presumed to be unaware of the proceedings
pending before this High Court.
30. We find it disconcerting that the National Commission
should continue to pass orders, such as that impugned in this Writ
Petition, despite the Supreme Court having clearly held, in All India
Overseas Bank SC & ST Employees’ Association1
, that it lacks the
17
power to pass orders of injunction, temporary or permanent. With the
fond hope and trust that the National Commission for the Scheduled
Tribes would desist from issuing any such directions, and from making
any such requests, in future, we refrain from saying anything more.
31. The sharp practice, resorted to by the 10th respondent, needs
to be deprecated. It is evident from a bare reading of his representation
dated 02.07.2019 that, while requesting the Commission to stop his being
arrested, the 10th respondent has suppressed the fact that he had already
filed W.P. (CRL) No.774 of 2019 before this Court on 21.05.2019, and
Special Leave to Appeal (Criminal) No.5169 of 2019 filed by him was
dismissed by the Supreme Court on 10.06.2019. Suppression of these
relevant and material facts before the National Commission is, evidently,
because the procedure for inquiry, prescribed by the National
Commission itself, stipulates that no action would be taken on matters
which are sub-judice, and sub-judice matters need not be referred to the
Commission as complaints.
32. Writ Petition (Criminal) No.774 of 2019 is sub-judice before
this Court, and the 10th respondent has surreptitiously, and without
reference to his having filed W.P. (CRL) No.774 of 2019 before this
Court and Special Leave to Appeal (Criminal) No.5169 of 2019 before
the Supreme Court, filed the complaint dated 02.07.2019 resulting in the
impugned order dated 02.07.2019 being passed by the National
Commission. The order, impugned in this Writ Petition, has been secured
by the 10th respondent suppressing relevant and material facts, and he has
thereby thwarted further investigation being caused against him by the
SIT headed by Dr. T.C. Manjunath. The various directions issued by the
Court in W.P. (PIL) No.228 of 2018 as noted hereinabove, and its
attempts to have the investigation completed by the SIT early, have been
successfully stonewalled by the 10th respondent surreptitiously securing
the impugned order dated 02.07.2019. The 10th respondent is, therefore,
liable to pay exemplary costs for having interfered with the
administration of justice by this Court, and in impeding the SIT
18
investigation being monitored by this Court in W.P. (PIL) No.228 of
2018.
33. The impugned order of the National Commission for
Scheduled Tribes dated 02.07.2019 is quashed. The Writ Petition is
allowed with exemplary costs of Rs.25,000/- which the 10th respondent
shall pay to the Uttarakhand State Legal Services Authority within four
weeks from today, failing which it is open to the Uttarakhand State Legal
Services Authority to recover the said amount in accordance with law.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, C.J.)
17.09.2019 17.09.2019