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2020 DIGILAW 115 (HP)

Varun Khari v. State Of Himachal Pradesh

2020-01-10

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. - In this writ petition, we are primarily concerned with the order passed by respondent No.2 i.e. The Himachal Pradesh State Commission for Women on 30.01.2018 (Annexure P-3), which has been questioned in this petition, and the same reads as under: "No. HPSCW-SML-Shashi-Varun-N. Delhi-3564 H.P. State Commission for Women, Shimla-1, H.P. From: The Member Secretary, H.P. State Commission for Women, Shimla-1, H.P. To The Chief Commissioner, Shimla, Railway Board Building, The Mall Road, Shimla, Himachal Pradesh 171003, H.P. Shimla-1 dated 30 Jan.2018. Subject: Regarding complaint of Ms. Shashi against her husband, Sh. Varun Khari, Income Tax Inspector. Sir/Madam, The H.P. State Commission for Women, Shimla-1, H.P. has received a complaint against Shri Varun Khari, Inspector of your office in which she has alleged domestic violence and harassment/cruelty etc. You are, therefore, requested to kindly not to transfer him from Shimla, till finalization of this case and further it has also been informed by the complainant that Sh. Varun Khari, Inspector, has submitted an application for surrendering Government Accommodation, allotted to him at New Shimla, therefore, till finalization the said case, the accommodation may not be vacated, please, as the complainant is residing in this accommodation. The copy of the summon dated 23.1.2018 to Sh. Varun Khari, Inspector, for appearing before the Commission on 15.2.2018, is attached with this letter. You are requested to kindly serve this Summon to him under intimation to this Commission, please. Yours faithfully, sd/- Member Secretary, H.P. State Commission for Women, Shimla-1, H.P. comshimlahp_1972@ hotmail.com 2. In addition, we are also concerned with the another order passed by the Commission on 24.02.2018 (Annexure P-6) which reads as under: "No. HPSCW-SML-Shashi-Varun-N. Delhi-3958 H.P. State Commission for Women, Shimla-1, H.P. From: The Member Secretary, H.P. State Commission for Women, Shimla-1, H.P. To The Chief Commissioner, Shimla, Railway Board Building, The Mall Road, Shimla, Himachal Pradesh 171003, H.P. Shimla-1 dated 24 Feb.,2018. Subject: Regarding complaint of Ms. Shashi against her husband, Sh. Varun Khari, Income Tax Inspector-Inquiry Report thereof for taking necessary cognizance in the matter. Madam, In continuation of this Commission letter of even number dated 30th Jan. 2018; The H.P. State Commission for Women, Shimla-1, H.P. has got inquired this matter through Superintendent of Police, Shimla, H.P. in which it has proved that Sh. Varun Khari, Inspector, has solemnized his marriage with Ms. Shashi at New Delhi in 2009. Madam, In continuation of this Commission letter of even number dated 30th Jan. 2018; The H.P. State Commission for Women, Shimla-1, H.P. has got inquired this matter through Superintendent of Police, Shimla, H.P. in which it has proved that Sh. Varun Khari, Inspector, has solemnized his marriage with Ms. Shashi at New Delhi in 2009. The Photocopy of the said Inquiry Report is attached herewith for favour of your kind information and taking further necessary cognizance in the matter to enter her name in the Service Book and other related records of Sh. Varun Khari, Inspector, as his first legal wedded wife. This matter is being fixed for personal hearing on 16/17.3.2018 in the Commission, therefore, you are requested to kindly ensure to send action taken report to this Commission on or before 16/17.3.2018. Yours faithfully, sd/- (Sandeep Negi) Member Secretary, H.P. State Commission for Women, Shimla-1, H.P. comshimlahp_1972 @ hotmail. com" 3. At the outset, we need to clarify that we are not going into the question regarding inter se relationship and the alleged discord between the private parties and are only concerned with the legality and propriety of the aforesaid orders. 4. The Himachal Pradesh State Commission for Women (for short 'the Commission') has been constituted under Section 3 of the Himachal Pradesh State Commission for Women Act, 1996, (for short 'the Act') which reads as under: "3. Constitution of Commission.- (1) The State Government shall, by notification in the Official Gazette, constitute a body to be know as the Himachal Pradesh State Commission for Women to exercise the powers conferred on, and to perform the functions assigned to it under this Act. Constitution of Commission.- (1) The State Government shall, by notification in the Official Gazette, constitute a body to be know as the Himachal Pradesh State Commission for Women to exercise the powers conferred on, and to perform the functions assigned to it under this Act. (2) The Commission shall consist of- (a) a Chairperson, who shall be an eminent woman committed to the cause of women; (b) "not more than four non-official members preferably women, to be nominated by the State Government from amongst the persons of ability, integrity and standing who have served the cause of women or have had sufficient knowledge and experience in law or legislation, administration of matters concerning the advancement of the women or leadership of any trade union or voluntary organization for women for protection, upliftment and promotion of common interests of women: Provided that, at least one member each shall be from amongst persons belonging to the Scheduled Castes and the Scheduled Tribes, respectively; (c) the Commissioner-cum-Secretary (Welfare) and the Director General of Police shall be the exofficio members of the Commission; (d) One Member-Secretary, to be appointed by the State Government, shall be any officer, who is or has been a member of the Civil Services of the State or of an all India Service or holds a civil post under the State." 5. The functions of the Commission have been enumerated under Section 10 of the Act which reads as under: "10. Functions of Commission.- (1) The Commission shall perform all or any of following functions, namely :- (a) investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws; (b) present to the State Government, annually and at such other times, as the Commission may deem fit. Functions of Commission.- (1) The Commission shall perform all or any of following functions, namely :- (a) investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws; (b) present to the State Government, annually and at such other times, as the Commission may deem fit. Reports upon the working of those safeguards ; (c) make in such reports recommendations for the effective implementation of those safeguards for improving the condition of women by the State; (d) review, from time to time, the existing provisions of the Constitution and other laws affecting women and recommend amendments thereto so as to suggest remedial legislative measures to meet any lacunae, inadequacies or shortcoming in such legislations ; (e) take up the cases of violation of the provisions of the Constitution and of other laws relating to women with the State Government or a appropriate authorities ; (f) entertain complaints and take suo-moto notice of matters relating to,- (i) deprivation of women's rights ; (ii) non-implementation of laws enacted to provide protection to women and also to achieve the objective of equality and development; (iii) non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships and ensuring welfare and development and providing relief to women, and to take up the issues arising out of such matters with the State Government or appropriate authorities ; (g) render guidance and advice to needy women in instituting proceedings in any judicial forum or tribunal for violation of constitutional provisions or any other laws relating to women ; (h) call for special studies or investigations into specific problems or situations arising out of discrimination and atrocities against women and identify the constraints so as to recommend strategics for their removal ; (i) undertake promotional and educational research so as to suggest ways of ensuring due representation of women in all spheres and identify factors responsible for impeding their advancement, such as, lack of access to housing and basic services, inadequate support services and technologies for reducing drudgery and occupational health hazards ; (j) participate and advice on the planning process of socio-economic development of women ; (k) evaluate the progress of the development of women in the State ; (l) inspect or cause to be inspected a jail, remand home. women's institution or other places of custody where women are kept as prisoners or otherwise, and take up with the concerned authorities such matters for remedial action as found necessary ; (m) fund litigation including police complaints involving issues affecting a large body of women or the interpretation of any provision of the Constitution or any other laws affecting women, and present to the State Government, every six months, report relating to such matters ; (n) make periodical reports to the State Government or any matter pertaining to women and, in particular, various difficulties under which women toil ; (o) co-operate with and assist and seek cooperation and assistance of the National Commission for Women and other Commissions for Women set up by different State Governments and also the Commission for Scheduled Castes and Scheduled Tribes and the Minorities Commission ; (p) frame schemes for the consideration of the State Government or any other appropriate authority for more effective implementation of this Act and, in particular, frame schemes for more effective implementation of laws relating to payment of maintenance to deserted women, payment of minimum wages, ensuring equal pay for equal work, housing and shelter for women, prevention of domestic violence, prevention of sexual harassment at work, prevention of illegal traffic in women, improvement of the health and safety in women and legal aid for women ; and (q) any other matter which may be referred to it by the State Government or by the National Commission for Women. (2) The State Commission shall, while investigating any matter referred to in clause (a) or sub-clauses (i) and (ii) of clause (f) of sub-section (1), 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 in the State 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 ; and (f) any other matter which may be prescribed. (3)(a) On any investigation mentioned in clause (a) or sub-clauses (i) and (ii) of clause (f) of sub-section (1) being completed the Commission on taking up the matter with the State Government or the appropriate authority under clause (e) or (f) of sub- section (1) may, recommend to the State Government or the appropriate authority, as the case may be, to institute legal proceedings or prosecution in the matter and may also recommend to the State Government or the appropriate authority, to appoint a counsel or a special prosecutor for the conduct of any such legal proceedings or prosecution; and the State Government may, having regard to the nature of the case and on being satisfied that it is necessary, in its opinion, to appoint a counsel or special prosecutor, do so. (b) The State Government or the appropriate authority, as the case may be, shall communicate in writing to the Commission, from time to time, the progress of any such legal proceeding or prosecution filed on the recommendation of the Commission. (4) the State Government or the appropriate authority shall not apply for withdrawal of any such case or proceedings instituted under sub-section (3), without the prior consultation, in writing, with the Commission." 6. Now, therefore, the moot question is whether the orders in question have in fact been passed within the purview and ambit of Section 10 of the Act. 7. In the reply filed to the petition, respondent No.2 has categorically stated that the aforesaid orders (Annexures P-3 and P-6) are neither judicial nor quasijudicial and are only in the form of request made to respondent No.4 i.e. the Chief Commissioner of Income Tax on the basis of the complaint and evidence submitted before the Commission. In addition to the aforesaid, it has been averred that the intention of the replying respondent (respondent No.2) was to get the the dispute amicably settled between the parties and it is in this background that a request was made to respondent No.4 vide Annexure P-3 to make it convenient to the parties to appear before the Commission for reaching at some amicable settlement. 8. In this background, the moot question is whether the impugned orders (Annexures P-3 and P-6) even if taken to be in the form of request could have been passed by the Commission. 9. 8. In this background, the moot question is whether the impugned orders (Annexures P-3 and P-6) even if taken to be in the form of request could have been passed by the Commission. 9. As observed above, the functions of the Commission have been enumerated in Section 10 (supra) and the same nowhere authorizes the Commission to pass orders of the nature as have been passed in Annexures P-3 and P-6, respectively. 10. That apart, the Commission is a creation of the statute and, therefore, is bound to act within the fourcorners of the statute that created it. 11. Adverting to the letter dated 30.01.2018 (Annexure P-3), respondent No.2 had no jurisdiction or authority to even request respondent No.4 not to transfer the petitioner from Shimla till the finalization of this case and asking respondent No.4 not to permit the petitioner to vacate the premises in question. This is clearly beyond the powers vested with respondent No.2 under the Act. The premises in question belongs to respondent No.4 over whom respondent No.2 had no jurisdiction or authority as it was for respondent No.4 to decide how and in what manner it wants to utilize its premises. 12. Now, adverting to the other letter dated 24.02.2018 (Annexure P-6), it would be noticed that respondent No.2 has specifically held it to be proved that respondent No.3 had solemnized marriage with the petitioner. To say the least, granting of such declaration is beyond the scope and ambit of Section 10 of the Act and, therefore, respondent No.2 had no such powers to have granted such declaration. 13. What would be the scope and ambit of Section 10 of the Act was a question that came up for consideration before the learned Division Bench of this Court in Munshi Ram vs. Dr.Y.S. Parmar University and others, (2006) 3 ShimLC 36 wherein it was held that the functions of the Commission are social or charitable and there is no provision of the Act that confers jurisdiction or authority on the authority to pass orders of maintenance. It was further held that while doing so the Commission had patently transgressed its limits and committed a patent illegality and violated the provisions of the Act. 14. It shall be apposite to refer to the necessary observations as contained in para-6 which reads as under: "6. It was further held that while doing so the Commission had patently transgressed its limits and committed a patent illegality and violated the provisions of the Act. 14. It shall be apposite to refer to the necessary observations as contained in para-6 which reads as under: "6. For deciding the first issue we have to have a bare look at the provisions of The Himachal Pradesh State Commission for Women Act, 1996 (1996 Act, for short) under which respondent No.2 Commission has been constituted. Section 10 of 1996 Act deals with the functions of the Commission. Section 11 stipulates that the State Government shall consult the Commission on all major policy matters affecting women. Section 12 lays down, while vesting in the Commission certain powers, that for the purpose of conducting investigations under the 1996 Act it may utilize the services of any officer or investigation agency or any other person. Apart from these Sections, no other provision of 1996 Act deals with or relates to the exercise of any power or the performance of any function by the Commission. Actually Sections 11 and 12, even though have been noticed by us are not relevant for our purpose at all. As far as our purpose is concerned, we have only to examine Section 10 of 1996 Act, which specifically deals with the functions of the Commission. A very close look at Section 10 clearly informs us that most of the functions of the Commission are either social or charitable or at best advisory in nature. In addition to submitting reports to the State Government annually, other functions of the Commission include the tasks of undertaking promotional and educational research, render guidance and advice to needy women, monitor the progress of the development of women in the State, fund litigation, including police complaints, make periodical reports to the State Government and finance schemes for the consideration of the State Government for more effective implementation of the provisions of the 1996 Act etc. etc. etc. This Section also lays down that the Commission may investigate and examine all matters relating to the safeguards respecting the women as provided under the Constitution of India and other laws, review from time to time the existing provisions of the Constitution and other laws affecting women and make recommendations to suggest remedial measures and take up the cases of violation of the provisions of the Constitution and other laws relating to women with the Government or appropriate authorities. Clause (f) of sub-section (1) of Section 10 specifically lays down that the Commission may entertain complaints and take suo moto notice of matters relating to the deprivation of women's rights, non-implementation of laws with respect to the protection of women, and noncompliance of policy decisions, guidelines or instructions aimed at mitigating hardships concerning the women etc. etc. Clause (f), therefore, merely empowers the Commission to entertain complaints and to take suo-moto notice with respect to the matters concerning the aforesaid subjects. Neither Clause (f) of sub-section (1) of Section 10 nor any other provision contained in Section 10 or elsewhere in 1996 Act suggests that apart from entertaining complaints and taking suo-moto notice of the aforesaid matters the Commission has any jurisdiction or power or authority to pass any order or to issue any direction, much less passing an order which would be in the nature of determining civil rights of the parties or visiting any party with any civil wrong. In other words it can safely be said that no provision of the aforesaid Act clothe the commission with any power nor does it vest in it any jurisdiction or authority to issue any direction to any one or to pass any order against any one which will have the effect of causing any prejudice to any such person or visiting him with any civil wrong. The legislature has rightly not clothed the Commission with any such power because passing of any such order is in the exclusive domain of the civil and criminal Courts constituted and created under the relevant laws of the land, to name a few, Code of Civil Procedure, Code of Criminal Procedure and laws relating to maintenance etc. etc. and is in the realm of judicial exercise of power as well as judicial adjudication of such disputes and conflicting claim as well as counter claims of parties. etc. and is in the realm of judicial exercise of power as well as judicial adjudication of such disputes and conflicting claim as well as counter claims of parties. The respondent No.2 Commission therefore has no jurisdiction and did not have any jurisdiction or authority to pass any such order. In passing the order dated 17.11.2003 and in issuing a direction qua respondent No.1 through the demi official letter dated 27.1.2004 respondent No.2 Commission has patently transgressed the limits imposed upon it by the aforesaid 1996 Act and has committed a patent illegality in violating the very basic right vested in the petitioner. Similarly, it also violated the provisions of 1996 Act by issuing the aforesaid uncalled for direction qua respondent No.1." 15. At this stage, it needs to be noticed that while construing Section 10 of the Orissa State Commission for Women, 1993, which specifies the functions of the Commission, the Hon'ble Supreme Court in Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women and another, (2010) 8 SCC 633 held that there was no power or authority given to the State Commission to adjudicate or determine the rights of the parties. The Act in fact had not vested the Commission with the power to take up the role of the Court or an Adjudicatory Tribunal and determine the rights of the parties. It was further held that the State Commission is not a Tribunal discharging the functions of a judicial character or a Court. Here, it shall be apposite to reproduce the relevant observations as contained in paras 9 to 11 which read as under: "9. It would be seen from Section 10 of the 1993 Act that the State Commission has been authorized to take up studies in respect of economic, educational and health situation of the women of the State and also the working conditions of women in the factories, establishments, construction sites and make its recommendations to the State Government. The State Commission is empowered to compile information in respect of the offences against women and to coordinate with the State Cell and District Cells for atrocities against women. Further, the State Commission is competent to receive complaints in respect of the matters specified in Section 10(1)(d) and take up the grievances raised in the complaint/s with the concerned authorities for appropriate remedial measures. Further, the State Commission is competent to receive complaints in respect of the matters specified in Section 10(1)(d) and take up the grievances raised in the complaint/s with the concerned authorities for appropriate remedial measures. The State Commission is also given role of assisting, training and orienting the non- Government organization in the State in legal counseling of poor women and enabling such women to get legal aid. Under clause (f) of Section 10(1), the State Commission is authorized to inspect or cause to be inspected, a jail, remand home, women's institution or other place of custody where women are kept as prisoners or otherwise and take up with the concerned authorities these matters for remedial action. 10. In other words, the State Commission is broadly assigned to take up studies on issues of economic, educational and health care that may help in overall development of the women of the State; gather statistics concerning offences against women; probe into the complaints relating to atrocities on women, deprivation of women of their rights in respect of minimum wages, basic health, maternity rights, etc. and upon ascertainment of facts take up the matter with the concerned authorities for remedial measures; help women in distress as a friend, philosopher and guide in enforcement of their legal rights. However, no power or authority has been given to the State Commission to adjudicate or determine the rights of the parties. 11. Mr. Ranjan Mukherjee, learned counsel for respondent 2 submitted that once a power has been given to the State Commission to receive complaints including the matter concerning deprivation of women of their rights, it is implied that the State Commission is authorized to decide these complaints. We are afraid, no such implied power can be read into Section 10(1)(d) as suggested by the learned counsel. The provision contained in Section 10(1)(d) is expressly clear that the State Commission may receive complaints in relation to the matters specified therein and on receipt of such complaints take up the matter with the authorities concerned for appropriate remedial measures. The 1993 Act has not entrusted the State Commission with the power to take up the role of a court or an adjudicatory tribunal and determine the rights of the parties. The State Commission is not a tribunal discharging the functions of a judicial character or a court." 16. The 1993 Act has not entrusted the State Commission with the power to take up the role of a court or an adjudicatory tribunal and determine the rights of the parties. The State Commission is not a tribunal discharging the functions of a judicial character or a court." 16. Therefore, what the Commission could not directly exercise under the powers vested with it under Section 10, cannot be permitted to be done under the garb of so-called "request" or else the same would defeat the very provisions of the Act. 17. Before parting, we may note that the provisions as contained in Section 10 (1) regarding functions of the State Commission of the Act are somewhat pari materia with the functions of the National Commission for Women Act, 1990 and while construing the same, the Delhi High Court in (i) U.S. Verma, Principal, DPS and another versus NCW,2009 163 DLT 57 , (ii) Vikram Singh and others vs. Union of India and others, (2010) 171 DLT 671 , (iii) Bhupinder Singh vs. Delhi Commission for Women and others, (2007) 94 DRJ 487 , (iv) Dr. Anil Seth vs. Delhi Commission for Women and others, (2010) 119 DRJ 87 and the Bombay High Court in KPMG India Private Limited vs. NCW, (2014) LabIC 4311 , have clearly held that the Commission has no powers whatsoever to adjudicate or determine the rights of the parties. 18. We may at the same time enter a caveat that no doubt the Commission is empowered to look into the complaints and take suo moto notice of the matters pertaining to deprivation of the rights of the women. However, the impugned orders (Annexures P-3 and P-6) are not in the form of advisories and, therefore, we have no hesitation to conclude that the procedure adopted by the State Commission i.e. respondent No.2 is without any authority as the Commission is not entitled to issue the impugned advisories to the employer of the writ petitioner that too without any information to him. 19. In the result, the writ petition is allowed and the impugned orders dated 30.01.2018 (Annexure P-3) and 24.02.2018(Annexure P-6) are quashed and set aside, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.