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Gujarat High Court · body

2016 DIGILAW 1566 (GUJ)

PIYUSH R PARIKH v. UDGAM SCHOOL OF CHILDREN

2016-07-29

N.V.ANJARIA

body2016
JUDGMENT : The petitioner has prayed to issue directions against the fourth respondent as well as the sixth respondent to take steps against the respondent Nos.1, 2 and 3, further praying for direction against the first, second and third respondents to allow the petitioner to discharge his duties as Account Assistant in the first respondent School, as also to release the outstanding dues claimed by the petitioner. 1.1 The fourth respondent arrayed is the National Commission for Scheduled Castes created under Article 338 of the Constitution whereas the sixth respondent is State of Gujarat through Secretary, Education Department. The first three respondents are private respondents being the School and the management of the school. 2. The controversy, if to be stated in a nutshell, is that according to the allegations of the petitioner, the office bearers of the private respondent School and the management harassed him, ill-treated him though he was a dutiful employee working on the post of Accountant and drove him away from services; on the other hand the case is countered by the respondent School that the petitioner had voluntarily left the services. What the petitioner prays is for a direction against the respondent No.4 National Commission for Scheduled Castes to intervene. 3. It would be relevant to set out the factual matrix in the background. The petitioner was appointed by the first respondent School run by second respondent Trust, as an Account Assistant from 01st June, 2007. It is the case of the petitioner that his salary was increased in August, 2008, that he was enjoying full confidence of the Trustees and used to report directly to the Trustees about the functioning in the accounting matters. The petitioner who belong to the scheduled caste, submitted that he had been discharging his duties with honesty, sincerity and integrity, the Manager (Administration) of the School Shri Dhimantbhai Chokshi did not like the progress of the petitioner; he did not like the petitioner checking the bills prepared by him nor did he like the close relations of the petitioner with the Trustees. It is the allegation of the petitioner that said Mr.Chokshi in order to cause harassment to the petitioner, shifted the place of the petitioner to an unhygienic environment near a toilet, due to which the petitioner became prone to fall sick. It is the allegation of the petitioner that said Mr.Chokshi in order to cause harassment to the petitioner, shifted the place of the petitioner to an unhygienic environment near a toilet, due to which the petitioner became prone to fall sick. The petitioner has further averred about non-approval of the leave to harass him even when the wife gave birth to twin children, who were kept on oxygen. It is the further case of the petitioner that said Mr.Chokshi filed false complaints against the petitioner. Consequently, stated the petitioner, on 06th September, 2011 the Assistant Director Bhanumati Chokshi, in an insulting tone asked the petitioner to go away after giving the keys of the office thereof, which was without any reason and without allowing the petitioner to give explanation. 3.1 It appears that the petitioner made a complaint to the respondent No.4 Commissioner alleging harassment and torture and asked it to intervene and provide the redress. Petitioner also made detailed representation dated 28th February, 2012 to the school management and also made representation of even date to the District Education Officer. It appears that in the meantime the fourth respondent undertook some inquiry issuing summons to the concerned parties and the District Education Officer. In the representation dated 28th February, 2012 made to the District Education Officer the petitioner complained that he was unemployed since 06th September, 2011 and he was not paid by the employer the leave encashment for the month of July, 2010 to June, 2011, was not paid the amount towards difference of Dearness Allowance as well as Employees Provident Fund. The petitioner requested the authority that the said amount may be paid to him without delay and for that, necessary steps may be taken against the private respondent School. 3.2 While the petitioner has stated about the Assistant Director of the Trust having ask him to go away, as per the stand of the private respondents in letter dated 14th June, 2012 the petitioner had voluntarily stopped coming. By the said communication the petitioner was asked to come to the office for receiving the arrears of the salary, etc. The petitioner has stated that he addressed letter-cum-representation dated 15th March, 2012 reiterating that he was stopped coming and join the duties. The petitioner threatened that a complaint would be lodged to the police under the provisions of the atrocity law. The petitioner has stated that he addressed letter-cum-representation dated 15th March, 2012 reiterating that he was stopped coming and join the duties. The petitioner threatened that a complaint would be lodged to the police under the provisions of the atrocity law. 3.3 It appears that the petitioner addressed a complaint to the fourth respondent on 18th June, 2012 expressing grievance that the private respondents had not been allowing him to report on duty. In response to the said application dated 18th June, 2012 of the petitioner, an intimation dated 20th June, 2012 was sent by the Commissioner stating that no further action was possible at the end of the Commission’s office and the petitioner could approach the court of law, if required. Regarding payment for unauthorized absence and continuation of service for the period of absence, the petitioner was asked by the Commission to approach the management under the existing rules and the provisions. The petitioner was intimated that the matter was treated as closed by the Commission. A copy of said communication figures on record of the petitioner (Annexure-F, Page 46). 3.4 The petition is contested by filing affidavit-in-reply. The private respondent Nos.1 and 2 have contended that the petition against them was not maintainable under Article 226 of the Constitution, that they were not amenable to the writ jurisdiction. They denied that the petitioner was stopped by them from working. Regarding the letters addressed by the petitioner to the respondent No.4, it was stated that replies were given. It was stated that management had never agreed to take the petitioner back and all the allegations were frivolous. They denied that the petitioner fell sick because of alleged nearness of his workplace to the place of toilet. It is denied that any complaint of harassment was made against the respondents. It was denied that the petitioner was compelled to work till late hours. It was also denied that voice recording device or close circuit cameras were placed to surveillance of the conduct of the petitioner. It was denied that Ms.Roomiben Chokshi had talked with the petitioner in insulting tone or that the petitioner was asked to go away from the School. It was denied by the respondents that all the allegations, by individually denying each of them, were wrong. It was denied that Ms.Roomiben Chokshi had talked with the petitioner in insulting tone or that the petitioner was asked to go away from the School. It was denied by the respondents that all the allegations, by individually denying each of them, were wrong. It was contended that no rights of the petitioner in relation to his membership of scheduled caste or scheduled tribe or caste status was infringed in any manner whatsoever. It was stated that in the letter dated 14th March, 2012 the School and the management in no uncertain terms informed the petitioner that he had voluntarily left the School and was not coming to serve. 3.5 It is the submission on behalf of the petitioner that respondent No.4 Commission is suppose to investigate and monitor the matter/complaint and by deciding thereon, safeguard his rights to save him from harassment by the respondent School and the school management. It was highlighted in the communication dated 20th June, 2012 the petitioner was asked by the Commission to approach the court of law. It is contended that the Commission is required to discharge all the functions necessary to protect and advance welfare of the scheduled caste class of people, which includes the grievance voiced by the petitioner. It is the submission and contention coming-forth in the petition that the respondent School authorities are required to be instructed by the Commission to take back the petitioner in services and to pay the legal dues. It is the case that the petitioner had gone to the School to resume duties but was not allowed, for which the fourth respondent Commission is required to take steps. The grievance of the petitioner that the fourth respondent which is a body constituted under the constitution, is bound to act in the facts of his case and discharge its constitutional powers. 4. Heard learned advocate Mr.Hardik B. Shah, learned Senior Counsel Mr.S.M. Soparkar for respondent Nos.1, 3 and 7, while learned advocate Mr.Niral Mehta appeared for respondent No.4. 5. From the compass of the factual controversy noted with some details and highlighted hereinabove, the petitioner has alleged the acts of harassment against the respondent School and the school management-the private respondents. 4. Heard learned advocate Mr.Hardik B. Shah, learned Senior Counsel Mr.S.M. Soparkar for respondent Nos.1, 3 and 7, while learned advocate Mr.Niral Mehta appeared for respondent No.4. 5. From the compass of the factual controversy noted with some details and highlighted hereinabove, the petitioner has alleged the acts of harassment against the respondent School and the school management-the private respondents. The nutshell of the allegations are that the co-employee developed envious approach against the petitioner and his work and the petitioner was harassed by creating impediments, not allowing him to work and by shifting his place to unhygienic place. All these allegations have been specifically denied in the affidavit-in-reply filed on behalf of said respondents. The crux of the controversy is that as per the case of the petitioner, the Administrator of the School had asked him not to come to the duty in a rude way and that he was not allowed to come to duty, whereas the stand of the respondent Nos.1 and 2 is that there is a voluntary abandonment of services by the petitioner. 5.1 The above conspectus of facts, allegations and counter-allegations, assertions and denials by the parties, invariably go to suggest that the disputes between the parties involve highly factual issues. There is a word against words. Highly disputed questions of fact arise in the wake. Adjudication of disputed questions of fact is not permissible in exercise of writ jurisdiction. The writ jurisdiction is not meant for investigating the issues in the factual arena. Inquiry and fishing inquiry of facts is not permissible. Going into the factual allegations and counter-allegations of the petitioner and the respondents is herewith declined by the writ court. Therefore, the petitioner’s case has no basis for redressal or merit in this petition. No relief can granted to him. 6. Inquiry and fishing inquiry of facts is not permissible. Going into the factual allegations and counter-allegations of the petitioner and the respondents is herewith declined by the writ court. Therefore, the petitioner’s case has no basis for redressal or merit in this petition. No relief can granted to him. 6. As far as the relief claimed against the fourth respondent National Commission for Scheduled Castes is concerned asking it to take appropriate step, is absolutely misconceived in asmuch as the Commission which is constituted under Article 338 of the Constitution, is provided with the duties as per Article 338(5) of the nature, (a) to investigate and monitor all matters relating to the safe-guards provided for the Scheduled Castes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes and Scheduled Tribes; (c) to participate and advise on the planning process of socio-economic development of the Scheduled Castes and Scheduled Tribes and to evaluate the progress of their development under the Union and any State; (d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; (e) to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and 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. Under sub-article (6), the President causes reports to be laid before the Houses of Parliament and such report along with memorandum is forwarded to the State Government. In other words, looking to the nature of duties assigned to the Commission, its function is one of investigation and not that of adjudication. Under sub-article (6), the President causes reports to be laid before the Houses of Parliament and such report along with memorandum is forwarded to the State Government. In other words, looking to the nature of duties assigned to the Commission, its function is one of investigation and not that of adjudication. 6.1 In Collector, Bilaspur Vs Ajit P.K. Jogi [ AIR 2012 SC 44 ] in paragraphs 13 and 14 of the decision the Apex Court explained the scope of powers of the Commission under Article 338 and 338A of the Constitution, as under. “The commission was constituted to protect and safeguard the persons belonging to scheduled castes and scheduled castes and scheduled tribes by ensuring : (i) antidiscrimination, (ii) affirmative action by way reservation and empowerment, and (iii) redressal of grievances. The duties under clause (5)(b) of Articles 338 (before amendments) did not extend to either issue of caste/tribe certificate or to revoke or cancel a caste/tribe certificate or to decide upon the validity of the caste certificate. Having regard to the subclause (b) of clause (5) of Article 338, the Commission could no doubt entertain and enquire into any specific complaint about deprivation of any rights and safeguards of Scheduled Tribes. When such a complaint was received, the Commission could enquire into such complaint and give a report to the Central Government or State Government requiring effective implementation of the safeguards and measures for the protection and welfare and socio-economic development of scheduled tribes. This power to enquire into 'deprivation of rights and safeguards of the scheduled castes and scheduled tribes' did not include the power to enquire into and decide the case/tribe status of any particular individual. In fact, as there was no effective mechanism to verify the caste/tribe certificates issued to individuals. The verification of the validity of caste certificates and determination of the caste status was directed to be done by the Scrutiny Committees constituted as per the directions in AIR 1995 SC 94 or in terms of any statute made by the appropriate government in that behalf.” (Paras 13, 14) 6.2 One of the questions considered by the Supreme Court was whether the Commission had the jurisdiction to entertain complaints about the genuineness of caste certificate of a particular individual and pronounce upon the validity of the caste certificate and the caste status of such person. In other words, the question was considered whether the Commission’s power travel into adjudicatory arena. 6.3 The answer was provided in paragraph 16, by recording, “It is only after recording the said findings, the Commission directed the State Government to verify the genuineness of the ST certificate obtained by first respondent and initiate action for cancellation of the certificate and also initiate criminal action. All these were unwarranted. As noticed above, the power under clause (5)(b) of Article 338 (or under any of the other sub-clauses of clause (5) of Article 338) did not entitle the Commission to hold an inquiry in regard to the caste status of any particular individual, summon documents, and record a finding that his caste certificate is bogus or false. If such a complaint was received about the deprivation of the rights and safeguards, it will have to refer the matter to the State Government or the authority concerned with verification of caste/tribal status, to take necessary action. It can certainly follow up the matter with the State Government or such authority dealing with the matter to ensure that the complaint is inquired into and appropriate decision is taken. If the State Government or the authorities did not take action, the Commission could either itself or through the affected persons, initiate legal action to ensure that there is a proper verification of the caste certificate, but it cannot undertake the exercise itself, as has been done in this case. The contention that there was sufficient material to reach such a conclusion is not relevant. The scope of the duties of the Commission as noticed above, did not involve inquiry or adjudication in regard to the rights of parties or caste status of the parties. The same is the position even under Article 338A (which was subsequently inserted) providing for a separate Commission for Scheduled Tribes with identical duties. The order of the Commission cannot therefore be sustained. The High Court was justified in setting aside the said order dated 16.10.2001.” (para 16) 6.4 Thus it was held that the scope of duties of Commission do not include and involve inquiry or adjudication with regard to the rights of the parties or the castes status of the parties. The Commission constituted under Article 338 of the Constitution is therefore not called upon to perform a function of deciding lis between the parties. The Commission constituted under Article 338 of the Constitution is therefore not called upon to perform a function of deciding lis between the parties. It does not have adjudicator character. Nor the Commission have even adjudicator trappings as a body or in its functioning. The contours of the dispute between the parties is not only involving disputed questions of fact in respect of the allegations of harassment leveled by the petitioner, for which it was necessary to go into the process of adjudication, but the prayer of the petitioner was to accept his case on the said count as well as for his claim that he was disallowed to come on duty vis-à-vis the stand of the respondents that there was a voluntary leaving of job by the petitioner, attracted the adjudicatory realm. 6.5 On the facts of the case, the issue essential was whether the services of the petitioner were dispensed with by an act on part of the private respondents or he left the services on his own volition and stopped coming on duty. This issue could not have been gone into by the Commission. It was a dispute in the service realm and the petitioner wanted to enforce the employment rights. A close reading of Article 338 would suggest that even the duties in sub-article (5) do not include the rights of such nature, namely the employment rights. This redressal could not be claimed by seeking any direction against the respondent No.4 Commission which, as noted above, does not have any adjudicating functions, adjudicating powers or even adjudicatory trappings in discharge of its functions. The petitioner may have to resort to civil remedies, if advised, for the grievance he is seeking to raise herein. He is not precluded. 7. For the discussion and reasons aforesaid, this petition is liable to be dismissed and hereby