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Madhya Pradesh High Court · body

2008 DIGILAW 655 (MP)

S K Verma v. State of M. P.

2008-05-06

R.S.GARG, R.S.JHA

body2008
JUDGMENT : (1) R. S. Jha, j. The present appeal has been filed by the appellant being aggrieved by order dated 17 - 10 - 2007 passed by the learned single judge in writ petition no. 14313/2007 (s) , whereby the petition filed by the petitioner has been dismissed on the ground of availability of an alternative remedy. (2) The facts in brief necessary for adjudication of the present appeal are that the respondent no. 6, who belongs to the scheduled caste category and is an under secretary working in the school education department filed a, complaint before respondent no. 2/madhya pradesh state scheduled caste commission against the present appellant/petitioner alleging that the appellant/petitioner had deliberately delayed the writing of his annual confidential reports relating to the years 2005, 2006 and 2007 and also made allegations that the appellant/petitioner was addressing and abusing the respondent no. 6 on the basis of his caste. (3) The issue was taken up by the respondent no. 3 in his capacity as chairman of respondent no. 2 and vide order dated 22 - 9 - 2007 recorded a finding that the appellant/petitioner had deliberately delayed the writing of the annual confidential reports of respondent no. 6 and was habitually addressing him and abusing him on the basis of his caste and on that basis himself took cognizance of the case and directed the police authorities to prosecute the appellant/petitioner under the provisions of the scheduled caste/scheduled tribe (prevention of atrocities) act, 1989 with a further direction to secretaries of the concerned departments to impose a punishment of stoppage of two increments cumulatively or of reversion and report compliance within fifteen days. (4) Being aggrieved by the aforesaid direction issued by the respondent no. 3, the appellant/petitioner filed a writ petition before this court, which has been dismissed by order dated 17 - 10 - 2007 on the ground that the appellant/ petitioner has an alternative remedy of filing an appeal. (5) It has been contended by the learned counsel for the appellant/ petitioner that the impugned order dated 22 - 9 - 2007 has been passed by respondent no. (5) It has been contended by the learned counsel for the appellant/ petitioner that the impugned order dated 22 - 9 - 2007 has been passed by respondent no. 3, who is neither a departmental authority nor has the order been passed in departmental proceeding and, therefore, an alternative remedy of filing an appeal under rule 23 of the madhya pradesh civil services (classification, control and appeal) rules, 1966 is not available to the appellant/petitioner. (6) It is further contended by the learned counsel appearing for the appellant/petitioner that the respondent no. 3 has no power, authority or jurisdiction to issue the order dated 22 - 9 - 2007 directing the police authorities to register a case against the appellant/petitioner under the provisions of scheduled caste/scheduled tribe (prevention of atrocities) act, 1989 or to direct the state authorities to initiate departmental proceedings against the appellant/petitioner as such directions are beyond the purview of the provisions of madhya pradesh anusuchit jati ayog adhiniyam, 1995 (for brevity 'the act of 1995'). (7) Per contra, learned counsel appearing for respondent nos. 2 and 3 has submitted that the impugned order has been passed by respondent no. 3 in exercise of powers under sections 9 and 10 of the act of 1995. Alternatively, it is submitted that the impugned order should be treated to be a recommendation only, which is yet to be acted upon by the state and, therefore, the petition and the appeal filed by the appellant/petitioner are misconceived. (8) During the course of arguments, it is also submitted by the learned counsel for the respondent nos. 2 and 3 that subsequent to the issuance of notice by this court and arguments on the previous date of hearing before this court the respondent no. 3 has modified the impugned order dated 22 - 9 - 2007 by order dated 1 - 5 - 2008 and that part where the departmental authorities have been directed to impose punishment upon the appellant/petitioner has been modified and a simple recommendation for initiating the departmental proceedings has now been made. (9) The learned government advocate appearing for the state submits that prima facie the impugned directions issued by the respondent no. 3 do not appear to be in conformity with the provisions of the act of 1995 and to that extent has supported the stand taken by the appellant/petitioner. (9) The learned government advocate appearing for the state submits that prima facie the impugned directions issued by the respondent no. 3 do not appear to be in conformity with the provisions of the act of 1995 and to that extent has supported the stand taken by the appellant/petitioner. (10) As is apparent from a perusal of the record, the appellant had filed the petition before this court assailing order dated 22 - 9 - 2007 passed by respondent no. 3. The said order was not passed or issued in any departmental proceedings under the provisions of civil services (classification, control and appeal) rules, 1966 but has in fact been issued in purported exercise of powers under sections 9 and 10 of the act of 1995 against which there is no provision for appeal under rule 23 of the civil services (classification, control and appeal) rules, 1966. In view of the aforesaid, we are in full agreement with the learned counsel for the appellant that the impugned order of the learned single judge dismissing the petition on the ground of alternative remedy of appeal suffers from manifest irregularity and deserves to be set aside. We accordingly entertain this appeal and proceed to decide the same on merits. (11) The issue before this court is as to whether the respondent no. 3 has the power, authority or jurisdiction to take up and adjudicate upon individual complaints like a civil court under sections 9 and 10 of the madhya pradesh anusuchit jati ayog adhiniyam, 1995 and to issue directions to the police authorities to prosecute an individual under the provisions of scheduled caste/schedule tribe (prevention of atrocities) act, 1989 or to direct imposition of a punishment or initiation of departmental proceedings against individuals. (12) To appreciate the rival contentions of the parties, it is apposite to take into consideration the provisions of sections 9 and 10 of the act of 1995, which read as under: "9. Functions of the commission. (12) To appreciate the rival contentions of the parties, it is apposite to take into consideration the provisions of sections 9 and 10 of the act of 1995, which read as under: "9. Functions of the commission. (1) it shall be the function of the commission (a) to act as watch - dog commission for the protection afforded to the members of the scheduled castes under the constitution and under any other law for the time being in force; (b) to recommend to the state government to take steps to add particular castes, races or tribes or parts of or groups within castes, races or tribes in the constitution (scheduled castes) order, 1950; (c) to watch the proper and timely implementation of programmes meant for welfare of scheduled castes and to suggest improvement in such programmes of the state government or any other body or authority responsible for such programmes; (d) to tender advice regarding reservation for scheduled castes in public services and admission in educational institutions; (e) to perform such other functions as may be assigned to it by the state government. (2) the advice of the commission shall, ordinarily be binding upon the state government, where, however, the government does not accept the advice, it shall record its reasons therefor. 10. Powers of the commission. The commission shall, while performing its functions under sub - section (1) of section 9, 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 the state and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisition ling any public record or copy thereof from any court or office; (e) issuing commissions for the examination of witnesses and documents; and (f) any other matter which may be prescribed. " (13) Before we interpret the above mentioned sections, we think it apposite to take into account the backdrop under which the act of 1995 was enacted as well as its aims and objects. " (13) Before we interpret the above mentioned sections, we think it apposite to take into account the backdrop under which the act of 1995 was enacted as well as its aims and objects. The supreme court in the case of indra sawhney and others vs. Union of india and others, 1992 supp (3) scc 217, had directed the government of india and the state governments to create a permanent machinery either by way of a commission or a committee for examining the requests of inclusions or exclusions of any caste, community or group of persons on the advice of such commission or committee and also for examining the exclusion of any pseudo community if smuggled into the list of obcs, in paragraph 243 (17) of the aforesaid judgment. Pursuant to the direction issued by the supreme court in the case of indra sawhney (supra) , the state of madhya pradesh enacted the act no. 25 of 1995, i. E. , madhya pradesh rajya anusuchit jati adhiniyam, 1995. The statement of object and reasons of the said act is as follows: "madhya pradesh anusuchit jati, anusuchit jan jati tatha pichhada varg ayog adhiniyam, 1983 (no. 31 of 1983) was enacted to provide for a commission for scheduled castes, scheduled tribes and other backward classes in the state. However, in view of supreme court's direction in the case of indra sawhney vs. Union of india, air 1993 sc 447, a separate commission is now required to be constituted for the backward classes other than scheduled castes and scheduled tribes. Accordingly a separate law is being enacted in that behalf. It has also become necessary to bring new and separate enactment for scheduled castes. " From a perusal of the above, it is apparent that the act of 1995 was enacted in compliance of the directions issued by the supreme court in the case of indra sawhney (supra) , primarily and basically for the purposes of examining the issues of inclusion, exclusion or over inclusion of any caste in respect of the scheduled castes notified under the constitution. (14) A perusal of the functions conferred upon the commission under section 9 of the act of 1995 also makes it clear that the commission has basically been constituted for the aforesaid purposes and section 9 (1) (a) , on which heavy reliance has been placed by the learned counsel for the respondent no. (14) A perusal of the functions conferred upon the commission under section 9 of the act of 1995 also makes it clear that the commission has basically been constituted for the aforesaid purposes and section 9 (1) (a) , on which heavy reliance has been placed by the learned counsel for the respondent no. 3, has to be understood and interpreted in the aforesaid context. It is also clear from reading of the provisions of section 9 (2) of the act of 1995 that the commission is only a recommendatory and advisory body and that its recommendations and advise is not final and binding upon the state government as the state has been conferred with the discretion to accept or not to accept the advice given by the commission by recording reasons therefore. A perusal of section 9 (1) (a) indicates that the commission constituted under the act has to act as a watch - dog for the protection afforded to the members of the scheduled castes under the constitution and under any other law for the time being in force. (15) In the light of the above, when various clauses to section 9 (1) are read together along with section 9 (2) it is abundantly clear that section 9 (1) (a) only confers upon the commission a function to over see that the constitutional benefits and protections as well as statutory protections afforded to the members of scheduled castes as a whole are being made available to them and in case the commission is of the opinion that there are certain lapses or shortcomings in affording the same, the commission may advise the state government as to the steps to be taken by the state for proper implementation of the constitutional and statutory protections, which advice may or may not be accepted by the state government. The powers conferred on the commission are limited to the aforesaid extent. In other words, the commission has not been empowered to act as an adjudicatory body into individual complaints. The powers conferred on the commission are limited to the aforesaid extent. In other words, the commission has not been empowered to act as an adjudicatory body into individual complaints. (16) Section 10 of the act of 1995 gives limited powers to the commission of a civil court only for the purposes of section 9 (1) in performing its advisory role of summoning and enforcing the attendance of any person, 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 examination of witnesses and documents and such incidental matters. Section 10 does not confer powers of a regular civil court to adjudicate all issues raised before it like a judicial forum with all its complexities. The commission is only an advisory body having no judicial powers of a regular civil court as is manifest from reading the provisions of the act of 1995. (17) From other provisions of the act of 1995 we also find that there is no provision prescribing any penalty under the act nor is there any provision empowering the commission to adjudicate upon the guilt or culpability of an individual nor has the commission been conferred with the power to issue any directions or orders to officers or authorities of the state government to comply with its orders within a fixed time and to report compliance thereof to the commission. (18) On a conjoint reading of the provisions of the act of 1995 leaves no iota of doubt that the commission has not been constituted to act as a superior body or an adjudicating authority having judicial or quasi - judicial powers sitting over and above all departments of the state government nor has it been empowered to try and inquire into the individual complaints like a civil court, a disciplinary authority or a trial court. It is also apparent that the commission cannot conduct a trial or a departmental enquiry against an individual, give a finding as to his guilt or otherwise and direct the authorities of the state government to take particular actions like instituting criminal proceedings or departmental enquiry against an individual. It is also apparent that the commission cannot conduct a trial or a departmental enquiry against an individual, give a finding as to his guilt or otherwise and direct the authorities of the state government to take particular actions like instituting criminal proceedings or departmental enquiry against an individual. It is also apparent that the commission cannot enforce its orders or directions nor can it call for a compliance report from the subordinate authorities of the state in respect of the directions issued by it. (19) From a perusal of the impugned order dated 22 - 9 - 2007 as well as the modified order dated 1 - 5 - 2008 placed on records by the learned counsel for respondent no. 3 during the course of hearing it is apparent that the complaint filed by the respondent no. 6 before the commission was sent by it to the concerned department and the general administration department vide its communication dated 25 - 5 - 2007 informed the commission that the a. C. Rs. Of respondent no. 6 for the years 2005, 2006 and 2007 written by the petitioner / appellant had been received by the school education department and that they do not contain any adverse remark against respondent no. 6. The commission was also informed that allegations regarding abusing and victimization on the basis of caste as levelled by the respondent no. 6 were found to be baseless. In spite of the aforesaid report of the concerned authority of the state government the respondent no. 3 on the insistence of respondent no. 6 issued notices to the petitioner and others, recorded their statements and thereafter, assuming and usurping the role of judicial forum, recorded a finding that the appellant/petitioner was guilty of victimizing respondent no. 6 only on the basis of his caste and on that basis respondent no. 3 directed the police authorities to prosecute the appellant/petitioner under the provisions of scheduled castes and scheduled tribes (prevention of atrocities) act, 1989 and also directed the departmental authorities to impose punishment upon the appellant/petitioner for the aforesaid misconduct. (20) Furthermore, perusal of notes 2,3, 4 and 5 made in the impugned orders also makes it clear that the respondent no. (20) Furthermore, perusal of notes 2,3, 4 and 5 made in the impugned orders also makes it clear that the respondent no. 3 has called for a compliance report of the directions issued by it within fifteen days from the principal secretary, general administration department, principal secretary, school education department, additional director general of police (scheduled caste/scheduled tribe) (ajk) and the superintendent of police, bhopal. (21) In our considered opinion, the impugned findings as well as directions issued by respondent no. 3 are apparently beyond the power, authority and jurisdiction vested in him by the act of 1995. In view of the interpretation as given by us to the provisions of sections 9 and 10 of the act of 1995, we are of the considered opinion that section 9 or 10 does not give or confer any power on respondent no. 3 to adjudicate upon the guilt or culpability of any individual and issue directions to subordinate authorities of the state to take particular actions against a particular individual and report compliance. The only function conferred upon respondent nos. 2 and 3 under the act is to make recommendations to the state government and not to issue directions to the subordinate authorities and that too, in respect of the limited purpose of section 9, which has been analysed by us in the preceding paragraphs. (22) In view of the aforesaid and even on the basis of the facts on records, we find that the present case is one of no evidence and the findings recorded by the respondent no. 3 against the appellant/petitioner are unsustainable. We also find from a perusal of the record that the present case was not one where the constitutional rights or statutory rights of respondent no. 6 were in any way violated as the writing of a. C. Rs. Is neither a constitutional nor a statutory right and in case the respondent no. 6 felt that he was being victimized or penalized on the basis of his caste, his appropriate remedy was to file a complaint under the provisions of the scheduled castes and scheduled tribes (prevention of atrocities) act, 1989 rather than misusing and abusing the powers of the commission under the act of 1995. (23) As we have held above and we reiterate that the respondent nos. (23) As we have held above and we reiterate that the respondent nos. 2 and 3 are not empowered to adjudicate upon individual complaints or to substitute itself in the place of criminal courts, departmental authorities or the civil courts and direct officers or authorities of the state to take a particular action against an individual and report compliance thereof, we find substance in the submission of the learned counsel appearing for the appellant/petitioner that the impugned order dated 22 - 9 - 2007 and the modified order dated 1 - 5 - 2008 are patently beyond the power, authority and jurisdiction of respondent nos. 2 and 3. We accordingly, allow the appeal and quash the impugned orders. We make it further clear that the subordinate authorities, who have been directed by the commission to take action against the appellant/petitioner and report compliance thereof are not bound by any such direction issued by respondent no. 3. (24) We may note the fact that on the previous date of hearing, after the matter was argued and this court was inclined to issue interim orders, the learned counsel appearing for respondent no. 3 had assured this court that he would advise the respondent no. 3 to withdraw the impugned order and pursuant to the aforesaid the modified order dated 1 - 5 - 2008 was issued by respondent no. 3 which has been placed before this court during the course of hearing with a submission that the impugned order has been suitably modified. However, we find that though superficial changes have been made by respondent no. 3, the tenor, language and the effect of the impugned order remains the same with cosmetic changes. It is also apparent from a perusal of modified order dated 1 - 5 - 2008 that respondent no. 3 by mentioning the provisions of sections 9,10,15,16 and 19 (2) of the act of 1995 has stated that it has full powers of the civil court to take cognizance of the matter and has thereafter again reiterated the directions to the police and departmental authorities to take action against the petitioner/appellant though the respondent no. 3 by mentioning the provisions of sections 9,10,15,16 and 19 (2) of the act of 1995 has stated that it has full powers of the civil court to take cognizance of the matter and has thereafter again reiterated the directions to the police and departmental authorities to take action against the petitioner/appellant though the respondent no. 3 has facially modified the order dated 22 - 9 - 2007 and tried to project it as a recommendation, in the notes appended to the order dated 1 - 5 - 2008, he has again directed the subordinate authorities of the state to comply with the directions issued by him regarding institution of a criminal case under the atrocities act and imposing punishment by initiating departmental proceedings and to submit a compliance report thereof within fifteen days. In view of the above, we are of the considered opinion that respondent no. 3 has tried to play fast and loose with this court and interfere in the judicial process. We express our disapproval on the conduct of respondent no. 3. Ordinarily, we would have imposed heavy penal costs upon respondent no. 3 for attempting to interfere in the judicial process of this court, however, as the learned counsel appearing for respondent no. 3 assures this court on his behalf that he shall be absolutely circumspect in future and shall act within the four - corners of law we think it appropriate to accept the submissions of the learned counsel with note of caution and impose a token cost of rs. 1000/ - only. (25) With the aforesaid observations, the appeal filed by the appellant/petitioner is allowed and the impugned orders dated 22 - 9 - 2007 and the order of modification dated 1 - 5 - 2008, which is in similar terms, are hereby quashed.