9911796707
TMI Blog2014 (4) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... ven only for temporary or transit accommodation. During 03.05.2008 to 07.05.2008, it is alleged by the respondent no. 9 that her belongings, which were kept in the guest house were thrown out and she was evicted in absentia while on leave. Subsequently, she was allowed to re-enter her room in the guest house. She alleges that she filed a complaint/F.I.R. in the concerned police station. The police filed a final report in the case relating to theft, which is said to have been challenged by her. A charge sheet is alleged to have been filed in respect of the alleged atrocity against her by the warden-in-charge of the guest house, namely Prof. D.K.Singh and Prof. Deepa Rani Saxena, who in turn had filed a writ petition before this Court wherein their arrest had been stayed. However, on 22nd December, 2009, she was allotted another residential accommodation, being Quarter No. T.F.-21, on the ground floor of Tyagraj Colony, with the request to vacate the guest house. Even then, she did not vacate the guest house. In stead, she approached this Court by means of Civil Misc. Writ Petition No. 12398 of 2010, which was decided against her vide judgement dated 12.03.2010 and she was allowed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etailed order observing therein as under: "Prima facie without entering into the question of jurisdiction of the Commission at this stage, we are satisfied that the University has cooperated in the investigation of the complaints and that the Vice-Chancellor has assured that he will appear at the appropriate stage, when the investigation through the appropriate officers of the university is over and deficiency if any on the part of the university is identified and communicated to him. In the facts and circumstances of the case, as an interim measure, we stay the execution of the warrant dated 19th June, 2013 and personal appearance of the petitioner before the Commission. The petitioner will, however, appear after the preliminary investigation, into the complaint is over through the assistance of the officers of the University, and after an order is passed by the National Commission for Scheduled Castes, communicating the object and purpose for which personal presence of the Vice-Chancellor is required. The National Commission of Scheduled Castes may complete the investigation into the complaint in accordance with law after considering the objections raised by the University incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Registrar of the University to send its comments on the report of the Commission, in pursuance whereof, the University appears to have sent the comments vide its letter dated 05.11.2013. The Government of India is, thus, seized with the matter. Though, after submission of the report, the impugned summons and warrants issued by the Commission have lost their efficacy, however, as the respondent no.9 insisted that the matter be decided on merits as the issues involved herein are likely to arise in future also and as she insisted that the Commission could further monitor the matter, we have considered the issues involved on merits. The moot point involved in the instant writ petitions is regarding the jurisdiction of the Commission in respect of the subject matter of the complaints, maintainability thereof as well as the justification for issuing summons and warrants for personal appearance of the Head of the Institution i.e. the Vice-Chancellor of the University. Sri Ravi Kant, learned Senior counsel appearing for the petitioner contended that the subject matter of the complaints in question was beyond the jurisdiction of the Commission in view of the provisions contained in Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns contained therein and had passed a reasoned order dated 08.08.2013 and 19.08.2013 stating that the assistance provided by the officials of the University was not at all satisfactory as they were not aware of the relevant facts, on account of which the presence of the Vice-Chancellor was necessary. The order of this Court dated 4th July, 2013 had been complied and only thereafter the warrant was issued. The respondent no. 9, Dr. Indu Choudhary, appeared in person and made her submissions. She invited the attention of the Court to her complaint dated 05.10.2011 and submitted that she had approached the Commission against the Vigilance Enquiry, which was continued for one and the half year before being dropped in May, 2013, which goes to show that it was initiated only to harass her. The insistence of the officials of the University for vacating the premises, during pendency of her application for review/modification of the judgment dated 12.03.2010, was not justified. She also invited the attention of the Court to the facts pertaining to her eviction from the guest house in absentia, illegally and high-handedly, in respect of which she had lodged an F.I.R. She invited the attenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect to the deprivation of rights and safeguards of the Scheduled Castes; (c) to participate and advise on the planning process of socio-economic development of the Scheduled Castes 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 socio-economic development of the Scheduled Castes; and (f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by rule specify." Under Article 338 (4) of the Constitution, the Commission is empowered to regulate its own procedure. Accordingly, it has framed the Rules. Rule 7.3 of the Rules relates to procedure for enquiry by the Commission. Rule 7.4 relates to enquiry into specific compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect 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. Rule 7.2.(a) (v) to (vi) of the Rules reads as under: "7.2.(a) v In accordance with clause 8 of Article 338 of the Constitution, while investigating in a matter referred to in sub-clause (a) or in inquiring into any complaint referred to in sub-clause (b) of clause (5) of Article 338, the Commission shall have all the powers of 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs and that any stay beyond the period of allotment will cost Rs. 200/- per day. The terms and conditions of the allotment were acceptable to her at that time and she had never objected to it until her letter to the Commission dated 05.10.2011 i.e. after than 3 years. She knew quite well that her accommodation was temporary and that she was expected to arrange a dwelling place for herself within three months. The allegations of discrimination in rental charges on account of her being a scheduled caste woman were denied. With regard to Prof. D.K.Singh and Prof. Deepa Rani Saxena it was stated that there was no record of any previous incident against them of levelling such allegations against any one. It was unthinkable that the aforesaid persons would conduct themselves in the manner as alleged by the complainant. So far as her eviction from the guest house is concerned, it was stated by the University that the complainant resided in the guest house from 24.07.2007 to 31.01.2008 and did not seek any accommodation. The University on sympathetic considerations allowed her to stay therein for a further period i.e. w.e.f. 01.02.2008 to 30.04.2008. She was requested by the Warden In-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters to her to vacate the premises and when she did not comply with the same, in issuing a charge-sheet for disciplinary proceedings. We fail to see as to how in such circumstances the allegations of discrimination based on caste could be levelled or accepted. Initiation of disciplinary proceedings was a purely administrative matter. The complaint in this regard was clearly barred by Rule 7.4.1 (g) of the Rules. It did not involve deprivation of any right or safeguard available to Dr. Indu Choudhary as a scheduled caste. Her conduct was in fact in gross violation of the judgement dated 12.03.2010 passed in Writ Petition No. 12398 of 2010 filed by her, relevant extract of which, is being quoted herein-below: "We do not find that the petitioner has made any good ground for occupying the transit accommodation indefinitely. She has allotted a house in the residential colony occupied by other faculty members. The allotment of room in Guest House to the petitioner was only for a temporary period as transit accommodation. The facility provided by the University cannot be claimed as a matter of right. Now since the petitioner has been allotted a regular residential accommodation, it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... University. By no stretch of imagination can such a complaint be treated as one falling within the fore-corners of Article 338 of the Constitution of India, specially, in view of the provisions of the Rule 7.4.1 (e), (f) & (g) of the Rules. The Commission entertained the complaint in a routine manner without applying its mind as to whether the same fell within its jurisdiction and whether it was in conformity with the Rules made by it or not. The repeated insistence of the Commission for appearance of the Vice-Chancellor by issuance of summons to him in respect of the aforesaid complaint of Dr. Indu Choudhary was clearly unjustified and unsustainable in law. Such action was also unjustified in view of the detailed point-wise reply submitted by the University on 17.12.2011 and on subsequent dates which leave no doubt that the allegations made in the said complaints were not bona fide nor was there any truth in the same, yet the Commission proceeded with the matter. So far as her letter dated 11th March, 2013 is concerned, we fail to understand as to how mere non-supply of certain rules by a certain officer of the University would amount to caste based harassment. It would have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner has all reasons to believe that the society must have obtained his consent before designating him as Chief Patron of the Society. Thus, Dr. Punia is vitally interested in the affairs of the society as well as the complaints alleged by Dr. Choudhary as the alleged General Secretary of the Scheduled Castes and Scheduled Tribes Employees Welfare Association (Regd.), Banaras Hindu University Varanasi. 60. That, that being so, Dr. Punia is clearly disqualified from either entertaining or participating in the hearings on the complaints. The settled principle is that justice should not only be done, but it seems to have been done. 61. That in view of the aforesaid clinching evidence, the conclusion is inescapable that Dr. Punia has deep and abiding interest in the subject matter of complaints. He ought to have rescued himself from participating in the proceedings, far less issuing of summons and warrant to the petitioner to appear personally before him." In spite of notice having been issued to the aforesaid respondent no. 2 on 04.07.2013, he did not file his personal affidavit denying the allegations made in paragraphs 58 to 61 of the writ petition. Even in the counter affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Though the learned counsel for the petitioner during the course of hearing on interim relief matter on 04.07.2013 made a statement before this Court that he was not pressing the allegations of mala fide against the Chairman of the Commission, the only reason we have referred to the aforesaid facts is to show the conduct of the complainant Dr. Indu Choudhary and the manner in which the proceedings took place before the Commission. The complaint dated 09.04.2013 reveals that Dr. Indu Choudhary raised grievances ranging from her personal grievances to violation of the reservation policy of the Government of India etc. by the University administration, in general. One of the grievances was with regard to the hostility of the University to the constitutional body of the Government of India i.e. the National Commission for Scheduled Castes. The subject matter of the said complaint so far as it related to deprivation of rights and safeguards of the scheduled castes, such as non-implementation of reservation policy etc. was within the jurisdiction of the Commission but the complaint was not in conformity with Rules 7.4.1 (d), (g) and (h) of the Rules, thus not maintainable. Her indivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to proceed any further with the complaint of Prof. Lal Chand Prasad, yet summons and warrants were issued in respect thereof by it which was clearly unjustified. Sri Lal Chand Prasad and others in their complaint dated 12.03.2012, raised a grievance regarding violation of reservation policy in respect of which detailed replies were submitted by the University on 18.04.2012 giving details of sanctioned, reserved and backlog posts, the number of vacancies advertised and those to be advertised shortly. This complaint was within the domain of the Commission subject to compliance of Rule 7.4.1 (a) to (g) of the Rules. As far as the complaint of Sri Mahendra Pratap Singh is concerned it was regarding non-implementation of the reservation policy and filling up of backlog vacancies on the posts of Professors and Assistant Professors in the University. The said complaint also alleged violation of office memo dated 30.12.2010 regarding filling up of backlog vacancies. The said complaint was within the jurisdiction of the Commission subject of course to the compliance of the Rule 7.4.1 (a) to (g) of the Rules. The complaint of Dr. Paramita Shuklabaidya, the then Assistant Professor in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey involve caste based harassment. Such deprivation has to be specifically made out in the complaint with the support of documentary evidence, if any, and with reference to the relevant provisions of law as is also evident from Rule 7.4.1 of the Rules made by the Commission itself. The Commission should form a prima facie view regarding maintainability of the complaint keeping in mind the provision of Article 338 and the Rules made by it under clause (4) thereof before entertaining the same and issuing notices thereon. Mere cryptic, unsubstantiated allegations lacking in necessary details as required under Rule 7.4.1 (a) to (f), which do not make out a case for interference, should not be acted upon by the Commission. It should be cautious not to entertain vexatious complaints made with oblique motives. The proceedings before the Commission should not be allowed to be misused for ulterior motives such as arm twisting the employer in purely administrative and disciplinary matters. The Commission should sift the complaints and entertain only the genuine ones. The next question which arises for our consideration in the instant case is as to whether the insistence of the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 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." The power to summon or enforce attendance of any person and examine him on oath, as available to the Commission under Article 338 (8), is the same as is available to a civil court trying a suit, as such, the exercise of such power is to be guided b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion from the proper perspective. If arbitrators are summoned mindlessly whenever applications for setting aside the award are enquired into, there will be few to undertake the job. The same principle holds good even if the prayer is for modification or for remission of the award. The short point is that the court must realise that its process should be used sparingly and after careful deliberation, if the arbitrator should be brought into the witness box. In no case can he be summoned merely to show how he arrived at the conclusions he did. In the present case, we have been told that the arbitrator had gone wrong in his calculation and this had to be extracted from his mouth by being examined or cross-examined. We do not think that every Munsif and every Judge, every Commissioner and every arbitrator has to undergo a cross-examination before his judgment or award can be upheld by the appellate court. How vicious such an approach would be is apparent on the slightest reflection. 4. Of course, if a party has a case of mala fides and makes out prima facie that it is not a frivolous charge or has other reasonably relevant matters to be brought out the court may, in given circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitute of Technology-BHU were not permitted to be filled up by the Ministry of Human Resources Development, Government of India owing to the pending issue of conversion of the said Institute into the I.I.T. BHU. The remaining 1 post of Professor reserved for the scheduled castes was to be advertised shortly. Like wise it was also stated that 69 posts of Associate Professors reserved for the scheduled castes had been advertised. 29 posts of Associate Professors reserved for the scheduled castes belonging to the Institute of Technology-BHU were not permitted to be filled up by the Ministry of Human Resources Development, Government of India for the reasons already mentioned above. The remaining 2 posts of Associate Professors reserved for the scheduled castes were to be advertised shortly. It was further stated that 85 posts of Assistant Professors reserved for the scheduled castes had been advertised. 28 posts of Assistant Professors reserved for the scheduled castes belonging to the Institute of Technology-BHU were not permitted to be filled up by the Ministry of Human Resources Development, Government of India for the reasons already mentioned above. The remaining 11 posts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Professors for ST, 165 posts of Assistant Professors for SC, 82 posts of Assistant Professors for ST and 298 posts of Assistant Professors for OBC were earmarked for these categories fulfilling the required percentage of reservation. The reservation roster had been prepared cadre-wise (not department-wise) as per the prescribed norms. Further details of the number of posts filled up and advertised etc. were also given. The said details have already been mentioned above. The current status regarding the back-log vacancies was also given. The aforesaid replies were not dealt with by the Commission before summoning the petitioner for his personal appearance or issuing the warrants for the said purpose. There was no necessity for insisting upon personal appearance of the Vice-Chancellor as the Vice-Chancellor was neither a witness to any incident/allegation nor any specific allegation of atrocity was made against him. The Vice-Chancellor is not supposed to have any personal knowledge of these matters. Being the Head of the Institution, he would assist the Commission only on the basis of records available with the University, which were in fact already produced by it before the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted by the University, which have been perused by us. There was sufficient material before the Commission by way of complaints as well as replies submitted by the University to arrive at a conclusion as to whether the scheduled castes have been deprived of any right available to them or not and to submit a report in this regard under Article 338 but there was no necessity of summoning the Vice-Chancellor. For the aforesaid reasons the issuance of summons and warrant in question is not sustainable being unjustified. Before parting we would like to refer to the report sent by the Commission to the Government of India as we find that one of the recommendations made is as under: "7. The Hon'ble Supreme Court may be requested to issue directions to all the Hon'ble High Courts not to interfere with the proceedings of the National Commission for Scheduled Castes being pursued under the provision of the Constitution and acknowledge the status of NCSC as a Constitutional body and interim orders against NCSC may not be passed as a matter of routine." We take strong exception to such recommendations/ recitals in the Report. Here, it has clearly exceeded its boundaries. Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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