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2024 DIGILAW 53 (KER)

Aswathy Viswan, W/o Dimple M v. State Of Kerala

2024-01-12

DEVAN RAMACHANDRAN

body2024
JUDGMENT : The petitioner is stated to be a member of the Child Welfare Committee, Kollam and impugns Ext.P6 proceedings of the Government ‘suspending her’, pending an enquiry into certain allegations. 2. Sri.Thomas Abraham – learned counsel for the petitioner, vehemently argued that Ext.P6 is vitiated for various reasons, including that the allegations therein against his client, are factually incorrect; and that it discloses the names of children who are victims of crimes under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). He added that, to make matter worse, the contents of Ext.P6 has been published by the competent Authorities in various media and therefore, that it is liable to be set aside. 3. On the merits of the allegations made against his client, Sri.Thomas Abraham submitted that they are not merely factually incorrect, but mischievous and intended to cause prejudice to her, solely because she had ‘dared’ to raise her voice against the ‘misdeeds’ of certain other Authorities. He then argued that, going by the statutory scheme, his client could not have been ‘suspended’ and hence that Ext.P6 is illegal and unlawful. 4. In response, Smt.Vidya Kuriakose – learned Government Pleader pointed out that, going by the provisions of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 (‘Rules’ for short) -as amended in the year 2022, particularly Rule 15(4D) thereof -if any complaint is made against a Chairperson or member of the Committee, the State Government shall hold an enquiry; and if necessary, suspend the person immediately pending enquiry. She, however, conceded that, such an enquiry has to be completed within a period of two months; but asserted that it will be up to the Government to take appropriate action thereafter. She explained that an enquiry has already been commenced against the petitioner and that she has also been heard by the District Collector; but admitted, to a pointed question from this Court, that it is the Government of Kerala which should hold the enquiry and to complete it within the time frame as is statutorily mandated. She, therefore, prayed that this writ petition be dismissed; adding that, by way of abundant caution, she has filed a detailed counter affidavit with certain documents being kept in a sealed cover, since it has sensitive information relating to the children, against whom offences under the POCSO Act have been committed. 5. She, therefore, prayed that this writ petition be dismissed; adding that, by way of abundant caution, she has filed a detailed counter affidavit with certain documents being kept in a sealed cover, since it has sensitive information relating to the children, against whom offences under the POCSO Act have been committed. 5. In reply, Sri.Thomas Abraham submitted that, even going by the afore Rule, read in conjunction with Sub Rule (4E) of Rule 15, no member of a Committee can be removed without holding an enquiry by the Government; and that this inviolably postulates that he or she be given an opportunity of being heard in the matter. He then asserted that, even though Ext.P6 was issued as early as on 09.12.2023, neither has a show cause notice has been issued to his client, nor has any enquiry commenced, to her information, by the Government of Kerala until now. He, therefore, reiteratingly prayed that the reliefs sought for in this writ petition be granted. 6. I have carefully evaluated the materials on record, juxtaposed by the submissions made by the learned counsel for the parties as afore. 7. I do not propose to enter into the merits of any of the rival contentions or the merits of the matter because, the sole issue before this Court, at this moment, is whether Ext.P6 is legally valid or otherwise. For this purpose, I choose not to refer to the counter affidavit of the respondents, which has annexed to it certain documents in sealed covers, since they, inter alia, contain the names of the victims. This is also because, Sri.Thomas Abraham has objected to the ‘sealed cover’ being produced and since he argues that, hence, the counter affidavit cannot be accepted without the documents being revealed. Since the privacy of the victim children are paramount, this Court can never permit their identities to be revealed and hence is certain that the ‘sealed covers; remain so. 8. That said, one of the arguments of Sri.Thomas Abraham is that, Exts.P6 and P7 -which is, the letter addressed by the Chairman of the Child Welfare Committee to the Director of the Directorate of Women and Child Development -discloses the names of the victims of the POCSO crimes. This surely is unacceptable and ought to have been avoided by the competent Authorities. This surely is unacceptable and ought to have been avoided by the competent Authorities. Further, this Court has already directed the Registry to ensure that the case files are properly anonymized, not to show the names of the children. It is certainly, therefore, requires that the statutory Authorities also do so, to ensure that the children are properly protected, through the processes of anonymization in all its records. 9. Coming to the merits of Ext.P6, there is a specific allegation against the petitioner, which I do not intend to indite in this judgment; but if the same is true, then surely, it is a matter of some concern. This Court is fully aware that the stand of the petitioner is that the said allegation is factually untrue and untenable; but this can only be established through a proper enquiry. Obviously, therefore, it is also to the benefit of the petitioner that a proper enquiry is conducted by the Government because, she can then absolve herself of any suspicion, through a process of law. 10. That being said, Rule 15 4(D) of the “Rules” admittedly provide for an enquiry by the Government, if a complaint is obtained against the member of a Committee; and if necessary, such person can also be suspended pending enquiry. Sri.Thomas Abraham admitted to this position of law, when asked pointedly by this Court. 11. In the afore perspective, when one examines Ext.P6, after narrating the allegations against the petitioner, it only says she be kept away from duty, until the enquiry is completed. Of course, this construes the nature of a suspension, but without using that word specifically. 12. As long as Rule15(4D) of the “Rules” vests power with the Government to suspend a member pending an enquiry, I do not see how the petitioner can challenge Ext.P6 on the ground that it does not obtain the competence to have issued such an order. The question whether the contents of Ext.P6 is true or otherwise, has to be proven through the enquiry, which the learned Government Pleader says has already begun. This Court is also cognizant that the petitioner impels a contra case that she has not been even given a show cause notice pursuant to Ext.P6 and that no enquiry, therefore, can be construed to have even begun. 13. This Court is also cognizant that the petitioner impels a contra case that she has not been even given a show cause notice pursuant to Ext.P6 and that no enquiry, therefore, can be construed to have even begun. 13. The afore disputations are in the realm of facts, which this Court cannot enter into, while acting under Article 226 of the Constitution of India. 14. Suffice to say, the Government has a duty to act as per law and within the time frames as are mandated under the statutory Scheme. 15. When Ext.P6 suspends the petitioner, obviously the enquiry also has to be completed within the time limit, as provided under the applicable Rule; which is within a period of two months. In fact, it is the specific submission of the learned Government Pleader that these time frames are being kept in mind by the Government and will be enforced scrupulously. In any event, such time frames have yet not expired. 16. In the afore circumstances, I see no reason to entertain this writ petition at this stage, though the petitioner will be at full liberty to approach this Court again in future, if it becomes so warranted. Resultantly, this writ petition is closed; however, leaving open all contentions of the rival parties, to be impelled and pursued by them, either during the enquiry against the petitioner, or before this Court in future, if necessary. In order to protect the privacy of the children involved, I order that the covers produced by the Government Pleader in a sealed fashion shall be maintained in such form itself, along with the judges papers, without being opened.