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Arvind Kadyan vs Bachan Singh & Ors on 2 June, 2020

Author: Jyoti Singh

Bench: Jyoti Singh

$~A-5 & 6
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    W.P.(C) 3319/2020

       ARVIND KADYAN                                            ..... Petitioner
                   Through:                Mr. Amit Khemka, Advocate with
                                           Petitioner in person
                    versus
       BACHAN SINGH & ORS.                                   ..... Respondents
                    Through:               Mr. Ripudaman Bhardwaj, CGSC
                                           with Mr. Shikhar Kishor, Advocate
                                           for UOI

+      W.P.(C) 3320/2020

       RAJIV CHOPRA                                             ..... Petitioner
                                Through:   Mr. Amit Khemka, Advocate with
                                           Petitioner in person
                    versus
       BACHAN SINGH & ORS.                                   ..... Respondents
                    Through:               Mr. Ripudaman Bhardwaj, CGSC
                                           with Mr. Shikhar Kishor, Advocate
                                           for UOI
       CORAM:
       HON'BLE MS. JUSTICE JYOTI SINGH
                    ORDER

% 02.06.2020 CM APPL. 11667/2020 IN W.P.(C) 3319/2020 CM APPL. 11669/2020 IN W.P.(C) 3320/2020 Exemptions allowed, subject to all just exceptions. Applications stand disposed of.

W.P.(C) 3319/2020 & CM APPL. 11666/2020 W.P.(C) 3320/2020 & CM APPL. 11668/2020

1. Hearing has been conducted through Video Conferencing.

2. Since both these petitions have laid a challenge to an Order dated 09.03.2020 passed by National Commission for Scheduled Castes (hereinafter referred to as 'Commission'), common order is being passed with respect to both the Petitions. For the sake of convenience, Petitioner in W.P.(C) No. 3319/2020 is hereinafter referred to as Petitioner No.1 and Petitioner in W.P.(C) No. 3320/2020 is referred to as Petitioner No. 2.

3. Petitioner No. 1 joined the State Trading Corporation of India Ltd. (hereinafter referred to as 'STC') in October, 2016 as a Chief Vigilance Officer and worked there till February, 2019. At present, Petitioner No. 1 is posted as Principal Financial Advisor (CIC & SSC) in the Ministry of Defence, Government of India. Petitioner No. 2 joined STC in January, 2013 as Director (Marketing). He is presently holding the Additional Charge of Chairman & Managing Director (CMD) of STC, but his substantive post continues to be that of Director (Marketing).

4. Respondent No. 2 is the Commission established under Article 338 of the Constitution of India with a view to provide safeguards against the exploitation of Schedule Castes and to promote and protect their social, educational, economic and cultural interests.

5. The genesis of the impugned order, according to Mr. Khemka, learned counsel appearing for the Petitioners, is an Office Memorandum dated 30.12.2009, received from Central Vigilance Commission (CVC) forwarding an anonymous complaint dated 13.09.2009, against officials of the STC, for necessary action. An audit Committee was formed to look into the various aspects raised in the complaint. On 08.06.2012, CVC forwarded another complaint dated 04.04.2012 against certain officials of the Corporation and directed STC to investigate and make recommendations.

The complaint contained allegations of gross irregularities and undue favours in awarding of contracts against certain officials and also highlighted the role of Respondent No. 1.

6. Respondent No. 1 joined STC as an Engineer (Electrical) on 13.08.1987 and his last promotion was to the post of Deputy General Manager on 10.06.2011. On receipt of the Investigation Report from STC, CVC advised major penalty proceedings against Respondent No. 1 and accordingly a Charge-Sheet was issued on 11.06.2015. Inquiry Officer gave his Report, where one of the three charges was held to be 'proved', second was 'partially proved' and the third was 'not proved'. Respondent No. 1 was given a chance to represent against the Inquiry Report. The Disciplinary Authority disagreed with the findings of the Inquiry Officer and after receiving comments from Respondent No. 1, on the Disagreement Memo, imposed the penalty of Compulsorily Retirement, vide order dated 08.09.2017.

7. In the meantime, Respondent No. 1 who had already filed several complaints before the Commission, since 2003 regarding his promotions, made a representation on 09.07.2015, seeking promotions under 'accelerated quota', with effect from 01.07.2000, as also complaining of victimisation on account of the Charge-Sheet.

8. After hearing the parties, the Commission by the impugned order dated 09.03.2020, recommended to the Department of Commerce to forthwith ensure grant of fast track promotions to Respondent No. 1 with effect from 01.07.2000 and also 'strongly recommended' causing registration of FIRs against the Petitioners herein. Operative part of the impugned order reads as under:

―ln the aforesaid circumstances/ this Commission deems it fit to recommend the case of the petitioner to the Secretary Department of Commerce/ GOI and accordingly strongly recommends to the Secretary Department of Commerce, Government of India to forthwith ensure cancellation of CRS of the petitioner and accord him fast track promotion in flier quota in MM cadre as on 01.07.2000, CMM as on 01.07.2003 and GM as on 01.07.2005 with all consequential and financial benefits to initiate proceedings against all the concerned, more particularly, the CMD Shri Rajiv Chopra; and CVO-STC Shri Arvind Kadiyan for having committed acts of atrocity upon the petitioner by causing registration of FIRs against the said officials and to proceed against them under the provisions of the Scheduled Castes and Scheduled Tribes (prevention of Atrocities) Act; 1989 as amended.‖

9. Mr. Khemka submits that the order suffers from jurisdictional error. Commission has transgressed its powers granted under Article 338 of the Constitution of India. The powers of the Commission are clearly crystallized and circumscribed in Article 338 of the Constitution of India. The Apex Court in All India Indian Overseas Bank SC and ST Employees' Welfare Association v. Union of India, (1996) 6 SCC 606, has observed that the powers of the Commission are limited to investigating and enquiring into matters relating to safeguards provided for Schedule Castes under the Constitution or any Law for the time being in force or under any Order of the Government, as well as to enquire into specific complaints with respect to deprivation of rights and safeguards of the Schedule Castes.

10. Mr. Khemka has also drawn the attention of the Court to a judgment of a Coordinate Bench of this Court in Maharaja Agrasen College & Anr.

v. Narendra Kumar & Ors., W.P. (C) 521/2018, decided on 26.03.2019, wherein it has been held that the Commission is not a Court and does not have jurisdiction to adjudicate 'Service Matters'.

11. Without prejudice to the above contentions, Mr. Khemka contends that even on merits the impugned order cannot be sustained. He submits that Petitioner No. 2 had no role either with respect to the promotions of Respondent No. 1 or his disciplinary proceedings. Elaborating the argument, it is submitted that Petitioner No.2 joined STC in January, 2013 as Director (Marketing) and presently holds the Additional charge of Chairman & Managing Director (CMD). Respondent No. 1 was working in the Marketing Division, but he never served directly under Petitioner No.2. He submits that when the Inquiry Report was rendered by the Inquiry Officer with respect to Respondent No. 1, Petitioner No. 2 being in the substantive post of Director (Marketing) did not function as the Disciplinary Authority. Petitioner No. 1 being a Chief Vigilance Officer (CVO) referred the matter to the Ministry and vide letter dated 13.01.2017 the Ministry appointed a senior Officer to function as an Ad-hoc Disciplinary Authority. Subsequently, vide letter dated 08.09.2017 another senior officer of the rank of Additional Secretary was appointed as the ad hoc Disciplinary Authority.

12. Mr. Khemka further contends that Petitioner No. 1 was the Chief Vigilance Officer in STC, when the Inquiry Report was given by the Inquiry Officer and as the CVO, it was his duty and responsibility to give comments on the Inquiry Report. Accordingly, Petitioner No. 1 after examining the Inquiry Report gave his comments and forwarded the same to the Disciplinary Authority. The steps taken by Petitioner No.1 were in accordance with his 'charter of duties' and as per the provisions of CVC W.P.(C) 3319/2020 & 3320/2020 Page 5 of 11 Manual and CVC Circular No. 08/12/14 dated 03.12.2014. Mr. Khemka further submits that false allegations have been levelled against the Petitioners.

13. Learned counsel further submits that against the penalty order, Respondent No. 1 had filed an Appeal before the Appellate Authority (Board of Directors) which was dismissed. Review Petition against the said order has also been dismissed and to the best of knowledge of the Petitioners, Respondent No.1 has not challenged any of the said orders, till date, in any Court of law.

14. It is thus argued by the learned counsel that the impugned order is a nullity and without jurisdiction. The Commission at the instance of Respondent No. 1, who is a habitual complainant, has issued a very drastic order against the Petitioners, recommending initiation of proceeding for registering FIRs and the order deserves to be set aside. It is further submitted that there is no reason/basis for the finding of alleged bias or atrocity in the impugned order. Nothing has been brought on record to prove the allegations levelled. Respondent No. 1 has been making complaints right from 2002, against the former CMDs and Senior Officers, without any basis.

15. I have heard the learned counsel.

16. Powers of the Commission are clearly circumscribed, as rightly contended by Mr. Khemka, in Article 338 of the Constitution of India, which reads as under, for ready reference:

―Article 338 National Commission for Scheduled Castes -

(1) There shall be a Commission for the Scheduled Castes to be known as the National Commission for the Scheduled Castes.

xxx xxx xxx W.P.(C) 3319/2020 & 3320/2020 Page 6 of 11 (5) It shall be duty of the Commission--

(a) to investigate and monitor all matters relating to the safeguards 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;

(c) to participate and advise on the planning process of socio-economic development of the Scheduled Castes 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 report 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

(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions any law made by Parliament, by rule specify.

xxx xxx xxx (8) The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), 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 India and examining him on oath;

(b) requiring the discovery and production of any W.P.(C) 3319/2020 & 3320/2020 Page 7 of 11 documents;

(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;

(f) any other matter which the President may, by rule, determine.‖

17. Supreme Court in All India Indian Overseas Bank (supra) in respect of the powers of the Commission, observed as under:

―10. Interestingly, here, in clause (8) of Article 338, the words used are ―the Commission shall ... have all the powers of the Civil Court trying a suit‖. But the words ―all the powers of a Civil Court‖ have to be exercised ―while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause 5‖. All the procedural powers of a civil court are given to the Commission for the purpose of investigating and inquiring into these matters and that too for that limited purpose only. The powers of a civil court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inferred or derived from a reading of clause (8) of Article 338 of the Constitution."

18. Three Coordinate Benches of this Court have had the occasion to analyze the parameters of exercise of power by the Commission, in the following cases:

1. Maharaja Agrasen College & Anr. v. Narendra Kumar & Ors., W.P. (C) 521/2018, decided on 26.03.2019;

2. Union of India & Anr. v. National Commission for Scheduled Castes and Anr., W.P.(C) 2390/2012, decided W.P.(C) 3319/2020 & 3320/2020 Page 8 of 11 on 28.05.2014;

3. Delhi Transport Corporation v. Manohar Lal and Anr., W.P.(C) 1613/2013, decided on 16.02.2016.

In Maharaja Agrasen (Supra) Court held as under:-

''7. The controversy involved in the case is, ex facie, a service matter. It is now a settled position that the NCSC does not have the jurisdiction to adjudicate service matters. The Supreme Court in All India Indian Overseas Bank SC & ST Employees Welfare Association and Ors. v. Union of India & Ors.: 1996 Supp(8) SCR 295 had examined the powers of the NCSC and had held that although the NCSC has certain powers of a Court, it was not a Court and thus would not adjudicate disputes. The said view was also followed by the Coordinate Benches of this Court in Union of India v. National Commission for Scheduled .Castes and Anr.: W.P.(C) 2390/2012 decided on 28.05.2014 and Delhi Transport Corporation v. Manohar Lal and Anr.: W.P.(C) 1613/2013 decided on 16.02.2016. This court had also considered the powers of the National Commission for Scheduled Tribes under Article 338A of the Constitution of India, which is similarly worded as Article 338 of the Constitution of India.

8. The learned counsel for NCSC submits that the impugned order is only a recommendation and is not an order. The said contention is unpersuasive as the plain reading of the operative part of the impugned order indicates that the petitioner has been called upon to submit an action taken report Clearly, NCSC is insisting on the implementation of its recommendations. Even, otherwise the tenor of the impugned order clearly indicates that it is an order although. couched as a recommendation, it is in W.P.(C) 3319/2020 & 3320/2020 Page 9 of 11 substance, an order. "

19. In light of Article 338 of the Constitution and the judgments referred above, this Court is of the prima facie opinion that there is a jurisdictional error in the impugned order. In Maharaja Agrasen (supra) Court has clearly observed that the Commission cannot function as a Court to adjudicate Service Matters. Thus the direction of the Commission to the Government of India to 'forthwith ensure' grant of promotions to Respondent No. 1, though couched as 'recommendation' is really an 'order' and is prima facie in the teeth of the judgement of this Court.

20. Mr. Khemka has very succinctly brought out that Petitioner No. 2 had no role to play in the disciplinary proceedings with respect to Respondent No. 1. Charge-sheet issued against Respondent No. 1, on 11.06.2015, was on the basis of First Stage CVC advice and Petitioner No. 2 was not his Disciplinary Authority. Likewise, Petitioner No. 1 being the Chief Vigilance Officer only followed the mandate of duties assigned to him, in accordance with CVC Manual and CVC Circulars. In fact, as a matter of record, he joined STC only in October, 2016, which was well after the issue of the Charge-Sheet and had no role in its initiation. In these circumstances, the direction of the Commission, though couched as a 'strong recommendation', to the Government of India, to initiate process towards registration of FIRs against the Petitioners herein, is prima facie wholly unwarranted.

21. Issue notice.

22. Mr. Ripudaman Bhardwaj, Advocate enters appearance and accepts W.P.(C) 3319/2020 & 3320/2020 Page 10 of 11 notice on behalf of Respondent No.3/Union of India.

23. Court was informed that advance copy of the Petition was served on the Commission. There is no representation on behalf of the Commission.

24. Issue notice to Respondent Nos. 1 and 2, on the Petitioners taking requisite steps, returnable on 31st July, 2020. Petitioners are permitted to serve Notices on both the Respondents, through electronic mode.

25. Counter Affidavits be filed by the Respondents within a period of six weeks from today. Rejoinders thereto, if any, be filed before the next date of hearing.

26. Operation of the impugned order dated 09.03.2020 to the extent it recommends/directs the Government of India to initiate the process towards registration of FIRs against the Petitioners herein, is stayed, till the next date of hearing.

27. Copy of the order be uploaded on the Website of the Court.

JYOTI SINGH, J JUNE 02, 2020 rd W.P.(C) 3319/2020 & 3320/2020 Page 11 of 11