Sai Securities v. Karnataka State Commission for Scheduled Caste & Scheduled Tribes, By its Chairperson
2011-03-24
B.S.PATIL
body2011
DigiLaw.ai
Judgment :- This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order dated 19.2.2010 passed in proceedings No.59/09 vide Annexure-G initiated by the respondent No.1 against the petitioner and etc. 1. In this writ petition, petitioner is challenging the order dated 19.02.2010 passed by the 1st respondent – Karnataka State Commission for Scheduled Castes & Scheduled Tribes (for short, ‘the Commission’) vide Annexure-G. Petitioner has also sought for quashing the entire proceedings initiated before the 1st respondent – Commission in Case No.59/2009. 2. It is the case of the petitioner that it is an entity providing human resources both skilled and unskilled for various organizations including Public Sector Undertakings. The 2nd respondent issued a tender notification dated 29.10.2009 calling for bids providing services of Janitors, Security Personnel, Drivers and Electricians to be positioned at Vani Vilas Hospital, Bangalore. Petitioner submitted tender for providing services of Janitors and Security Personnel. They were the successful bidders for providing service of Janitors only. The contract was awarded to the petitioner for providing service of Janitors and work order in the regard was issued on 07.01.2010. 3. It is alleged by the petitioner that the 3rd respondent claiming to be the President of an organization known as ‘Unorganised Labour Union’ demanded a sum of Rs.1,00,000/- towards what he claimed as ‘protection money’ failing which he stated that the petitioner would have to face hurdles. As the petitioner did not heed to the request, it is alleged that the 3rd respondent started visiting the contracted premises and made repeated attempts to disrupt the work carried on by the employees of the petitioners, as a result, the petitioner lodged a police complaint on 09.01.2010 before the Victoria Hospital Police Station. Yet another complaint was filed on 10.01.2010 before the same police. When no action was taken by the police, the petitioner filed a writ petition before this Court. After a direction was issued by this Court to take necessary action, it is urged that the police have taken some action. 4.
Yet another complaint was filed on 10.01.2010 before the same police. When no action was taken by the police, the petitioner filed a writ petition before this Court. After a direction was issued by this Court to take necessary action, it is urged that the police have taken some action. 4. It is thereafter that the 3rd respondent has approached the 1st respondent – Commission filing a petition alleging that the petitioner had indiscriminately terminated the services of some of the employees belonging to Scheduled Castes and Scheduled Tribes who were in service in the Hospital for more than a decade and thus committed an act that was aimed at affecting the livelihood of the innocent workers belonging to downtrodden section. Based on the said petition, the 1st respondent – Commission has passed the impugned order as an interim measure vide Annexure-G thereby directing that the entrustment of the work pursuant to the tender notification in favour of the petitioner shall not be given effect to. 5. It is contended by the learned counsel for the petitioner that the petitioner has appeared before the 1st respondent – Commission and has filed a detailed statement of objections interalia contending that the Commission does not have any jurisdiction to examine the complaint filed as it did not fall within the purview of the provisions of the Karnataka State Commission for Scheduled Castes & Scheduled Tribes Act, 2002 (for short, ‘the Act’). It is also brought to the notice of the Commission by the petitioner that the legality and correctness of the award of contract pursuant to the tender notification in favour of the petitioner is the subject matter of dispute before this Court in W.P.No.2041/2010 filed by the 3rd respondent himself who is the complainant before the 1st respondent – Commission and therefore the Commission should desist from going into the said question. Despite the same, the Commission had proceeded with the matter and it is in this background that the petitioner has sought the second relief seeking to quash the proceedings before the 1st respondent. 6. The 1st respondent has filed the statement of objections justifying the action initiated. 7. I have heard the learned counsel for the petitioner, the 1st respondent and the learned Government Pleader for the 2nd respondent.
6. The 1st respondent has filed the statement of objections justifying the action initiated. 7. I have heard the learned counsel for the petitioner, the 1st respondent and the learned Government Pleader for the 2nd respondent. The question that arises for consideration in this petition is: “Whether the 1st respondent-Commission has power and jurisdiction to pass the interim order as per Annexure-G directing that the contract awarded in favour of the petitioner shall not be given effect to? 8. Learned counsel for the 1st respondent-Commission draws the attention of the Court to the provisions contained in Chapter-III, particularly Section 8 of the Act to contend that such a power is inherent in the nature of functions which are entrusted to the 1st respondent-Commission. It is necessary to refer to the provisions contained in Section 8 of the Act. It reads as under: “8. Functions of the Commission- The functions of the commission shall be as follows,- (a) to investigate and examine the working of various safeguards provided in the constitution of India or under any other law for the time being in force or under any order of the Government for the welfare and protection of the Scheduled Castes and the Scheduled Tribes of Karnataka and; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguard of the Scheduled Castes and the Scheduled Tribes of Karnataka and to take up such matter with the appropriate authorities; (c) to participate and advise on the planning process of socio economic development of the Scheduled Castes and the Scheduled Tribes and to evaluate the progress of their development in the State. (d) to make recommendations as to the measures that should be taken by the State for the effective implementation of safeguards and other measures for the protection, welfare and socio economic development of the Scheduled Castes and the Scheduled Tribes and to make report to the State Government annually and at such other time as the Commission may deems fit.
(d) to make recommendations as to the measures that should be taken by the State for the effective implementation of safeguards and other measures for the protection, welfare and socio economic development of the Scheduled Castes and the Scheduled Tribes and to make report to the State Government annually and at such other time as the Commission may deems fit. (e) to discharge such other functions in relation to the protection, welfare, development and advancement of the Scheduled Castes and the Scheduled Tribes as may be prescribed: Provided that if any matter specified in this section is dealt with by the National Commission for Scheduled Castes and the Scheduled Tribes established under Article 338 of the Constitution of India the State Commission for Scheduled Castes and the Scheduled Tribes shall cease to have jurisdiction on such matter.” 9. It is clear from the provisions contained under Section 8 of the Act that the Commission is enjoined with functions to investigate and examine the working of various safeguards provided in the Constitution of India or under any other law intended for the welfare and protection of the Scheduled Castes and Scheduled Tribes and to inquire into specific complaints with respect to deprivation of rights and safeguards of the Scheduled Castes and Scheduled Tribes and to take up such matter with the appropriate authorities. It is also to be seen that the Commission is enjoined with duty to participate and advise on the planning process of socio economic development of the Scheduled Castes and Scheduled Tribes and to make recommendations for effective implementation of safeguards and other measures for protection, welfare and socio economic development of the Scheduled Castes and Scheduled Tribes. Section 10 of the Act clothes the Commission, for the purpose of investigating any matter under Section 8 to have the powers of Civil Court in the matter of summoning and enforcing the attendance of witness, requiring the discovery and production of any document, receiving evidence on affidavits, requisitioning any public record or copy thereof from any court or office and issuing commissions for the examination of witnesses and documents and any other matter which may be prescribed. 10.
10. A conjoint reading of Sections 8 & 10 would discloses that the duties and functions entrusted to the Commission are in the nature of investigation and examination of the working of various safeguards provided to the Scheduled Castes and Scheduled Tribes and to inquire into specific complaint by requisitioning any public record or document and exercising such powers as are vested with the Civil Court in the matter of summoning of witnesses for the purpose of taking up such matter with the appropriate authorities and also to make recommendations regarding the measures that are to be taken by the State for effective implementation of the safeguards aimed at protecting the welfare and socio economic development of the Scheduled Castes and Scheduled Tribes. The provisions of the Act, particularly, Sections 8 & 10 do not clothe the Commission with power to pass an interim order of the nature that is challenged here. The impugned interim order is a restraint order preventing entrustment of work pursuant to the contract awarded in favour of the petitioner based on the tender notification issued after following the provisions of the Karnataka Transparency in Public Procurements Act, 1999. Any person aggrieved by such contract awarded pursuant to the tender notification is conferred a right of appeal under Section 16 of the Karnataka Transparency in Public Procurements Act, 1999. Judicial review of the action of the authorities including that of the appellate authority is also open to correct the apparent illegalities including arbitrary and unfair exercise of power as and when the affected persons approach this Court invoking Article 226 of the Constitution of India. 11. The power that is now sought to be exercised by the 1st respondent – Commission by issuing an interim direction tantamounts to exercising such appellate powers or power of judicial review of the administrative action of the 2nd respondent which is not permissible. In fact, the petitioner has brought to the notice of the 1st respondent- Commission the pendency of the writ petition in W.P.No.2041/2010, wherein the very 3rd respondent who is the complainant before the Commission has challenged the contract awarded in favour of the petitioner.
In fact, the petitioner has brought to the notice of the 1st respondent- Commission the pendency of the writ petition in W.P.No.2041/2010, wherein the very 3rd respondent who is the complainant before the Commission has challenged the contract awarded in favour of the petitioner. While it cannot be denied that the 1st respondent – Commission is entitled to examine the grievance made by or on behalf of the persons belonging to Scheduled Castes and Scheduled Tribes regarding deprivation of their rights, privileges and protection, it has to be held that the provisions of the Act do not clothe the Commission with right to issue an interim direction restraining execution or performance of the contract duly entered into by the Government or its instrumentality with private parties like petitioner pursuant to the tender notification issued. 12. It is well established that the power which is not specifically conferred on a Tribunal or a body cannot be inferred by a process of interpretation of the general terms of the legislation. Even if the provisions of Sections 8 & 10 are construed liberally and in an elastic manner, such a power does not emanate from the provisions of the Act. In fact, the Commission can take up the case of such persons belonging to downtrodden sections and submit report or make recommendations to the concerned authorities to ensure that their grievance is redressed. Therefore, the petitioner is right and justified in contending that the 1st respondent-Commission has exceeded its jurisdiction in passing the impugned order. 13. However, as regards the second relief sought by the petitioner to quash the proceedings, it has to be stated that the 1st respondent – Commission cannot be prevented from examining the alleged deprivation of the rights of the persons belonging to Scheduled Castes and Scheduled Tribes. Therefore, the proceedings cannot be quashed. 14. As already stated above, the writ petition in W.P.No.2041/2010 filed by the complainant challenging the contract awarded to the petitioner is pending. In view of the same, it will be open to the petitioner to request the 1st respondent – Commission to examine its power and jurisdiction to deal with the very same question that are seized by this Court. Whereupon, I am sure the 1st respondent –Commission will consider the same in accordance with law and proceed to examine only such questions that are within its ambit and scope. 15.
Whereupon, I am sure the 1st respondent –Commission will consider the same in accordance with law and proceed to examine only such questions that are within its ambit and scope. 15. It is also submitted by the counsel for the parties that now the tender period is already over and the same will be reported to the 1st respondent – Commission for passing appropriate order. Both parties are at liberty to place the said fact also before the Commission. 16. In terms stated above, this writ petition is partly allowed. The impugned order at Annexure-G is quashed.