Karnataka High Court
State Of Karnataka vs Dr Sakey Shamu on 5 September, 2019
Author: G.Narendar
Bench: G.Narendar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2019
BEFORE:
THE HON'BLE MR. JUSTICE G.NARENDAR
W.P.NO.12782/2018(S-PRO)
BETWEEN:
1. STATE OF KARNATAKA
REPRESENTED BY THE
PRINCIPAL SECRETARY TO
GOVERNMENT
HIGHER EDUCATION DEPARTMENT
M.S.BUILDING
BENGALURU.
2. THE PRINCIPAL SECRETARY
TO GOVERNMENT
LAW DEPARTMENT, VIDHANA SOUDHA
BENGALURU.
..PETITIONERS
(BY SRI T S MAHANTHESH, AGA)
AND:
1. DR. SAKEY SHAMU
PROFESSOR,
DEPARTMENT OF CIVIL ENGINEERING
B.M.S.COLLEGE OF ENGINEERING
BULL TEMPLE ROAD
BENGALURU - 560 019.
2. THE DIRECTOR
NATIONAL COMMISSION FOR
SCHEDULED CASTES
2
5TH FLOOR, LOKNAYAK BHAWAN
NEW DELHI - 110 003.
3. B.M.S. ENGINEERING COLLEGE
BULL TEMPLE ROAD
BENGALURU - 560 019
REPRESENTED BY ITS
CHAIRMAN.
..RESPONDENTS
(DR.SAKEY SHAMU (PARTY-IN-PERSON)-R-1
SRI D BASAVARAJA, ADVOCATE FOR R-2
SRI H SRINIVAS RAO AND
SRI BADRI VISHAL, ADVOCATES FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
THE RECORDS IN FILE NO.T-3, KARNATAKA-5/2016/SSW-I ON
THE FILE OF THE NATIONAL COMMISSION FOR SCHEDULED
CASTES, NEW DELHI(ANNEXURE-A) AND DIRECTION SETTING
ASIDE THE IMPUGNED PROCEEDINGS DATED:11.09.2017
PASSED IN FILE NO.T-3, KARNATAKA -5/2016/SSW-I ON THE
FILE OF THE NATIONAL COMMISSION FOR SCHEDULED
CASTES, NEW DELHI (ANNEXURE-A).
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING `B' GROUP THIS DAY THE COURT MADE THE
FOLLOWING:
ORDER
Heard learned Additional Government Advocate and first respondent-party-in-person and learned counsel for second and third respondents.
32. The matter lies in a narrow compass. Petitioner is the State represented by Principal Secretary to Government, Higher Education Department and are before this Court being aggrieved by the proceedings of the second respondent-National Commission for Scheduled Castes dated 11.09.2017-Annexure-A.
3. Learned Additional Government Advocate would draw the attention to un-numbered paragraphs at page 24 of the writ petition:
"The petitioner is present. No one from authority has attended the hearing. The Commission expressed its unhappiness on the non-appearance of the authorities and observed it as disregard of the Commission. This may be conveyed to the Chief Secretary, Government of Karnataka. However, the case was taken up for discussion and submission by the petitioner.4
Petitioner has submitted that the Council of Trustees of BMS Educational Trust in its meeting held on 10.03.2017 had discussed the issue and passed the resolution that as per the recommendations in the proceedings of the National Commission for Scheduled Castes dated 08.02.2017, the Council of Trustees resolved to propose and send Dr.Sakey Shamu's case to the Government for consideration.
The Commission observed that no action taken report has been submitted by State Government of Karnataka till date. The Commission therefore, recommends that when the BMS Educational Trust has sent a proposal for giving the promotional and other consequentional benefits in accordance with the recommendation of the Commission, the State Government should accord their necessary approval for the promotion to the petitioner w.e.f.5
31.03.1995 as Professor and as a consequence for promotion to the post of Principal, BMS College of Engineering. Therefore, the college authorities should issue the order of promotion to the post of Professor w.e.f. 31.03.1995 and as Principal, BMS College of Engineering immediately as the National Commission for Scheduled Castes has already heard the matter and passed its recommendation in the previous record notes. Action Taken Report (ATR) in the matter may be intimated to this Commission within 30 days' time. The Principal Secretary (Higher Education) and Principal Secretary (Law), Government of Karnataka, Director of Technical Education, Government of Karnataka, Member Secretary, BMS Educational Trust and the Chairman, BMS College of Engineering shall appear in person and submit ATR on 23.10.2017 with all necessary approvals. TA for appearing in the Commission should be granted to 6 Dr.Sake Shamu and his absence from College for this purpose may be treated as leave."
4. The law in this regard is no more resintegra, having been settled by the Apex Court and this Court in the case of Karnataka Antibiotics and another Vs National Commission SC and ST and others reported in ILR 2008 Karnataka 3305. The Hon'ble Apex Court in the case of All India Indian Overseas Bank SC and ST Employees' Welfare Association and others Vs Union of India and others reported in (1996) 6 SCC 606 was pleased to interpret the scope and ambit of the provisions of Clause 8 of Article 338 in paragraph 10 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 7 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."
5. The Hon'ble Apex Court after having held as above was further pleased to observe at paragraph 11 as below:
"11. The Commission having not been specifically granted any power to issue interim injunctions, lacks the authority to 8 issue an order of the type found in the letter dated 04.03.1993. The order itself being bad for want of jurisdiction, all other questions and considerations raised in the appeal are redundant. The High Court was justified in taking the view it did. The appeal is dismissed. No costs."
6. This Court in the case of Karnataka Antibiotics and another Vs National Commission SC and ST and others after placing reliance on the Judgment of the Hon'ble Apex Court has been pleased to hold as under in paragraphs 10 to 13.
"10. Keeping in view the law declared by the Supreme Court in the decisions referred to above, it is required to examine the fact situation in the present case. The impugned direction dated 11.9.2006 was issued by the second respondent. The second respondent is a member of first respondent-National Commission for 9 Scheduled Castes and Scheduled Tribes. In this writ petition the petitioners are questioning the competency of the second respondent to issue the impugned direction. Therefore what is questioned in this writ petition is the competency of second respondent to issue the impugned direction and not the service condition relating to the fourth respondent. Though the impugned direction mentions reinstatement and payment of other benefits to the fourth respondent the same is only an incidental. The first petitioner being the trade union representing the majority of employees of the third respondent company and the second petitioner being an employee are entitled to maintain a writ petition questioning the competency of second respondent to issue the impugned direction.
11. The decisions relied on by the learned Counsel for the fourth respondent in Ramegowda v. State of Karnataka (Supra) 10 and R.K. Jain v. Union of India and Ors. (Supra) are in relation to the service jurisprudence. In this judgment it is held that any service jurisprudence it is for the aggrieved person to assail the legality of the offending action. But in the instant case, the petitioners are questioning the competency of second respondent to issue the impugned directions and not the service conditions. Though the impugned order mentions about the reinstatement of fourth respondent and payment of benefits is only an incidental. Therefore the decisions relied on by learned counsel for the fourth respondent are not applicable.
Accordingly I answer question No. 1 in affirmative holding that the petitioners are entitled to maintain the writ petition.
On Question No. 212. Article 338 of Constitution of India specifies for constitution of National Commission for Schedule Castes and 11 Schedule Tribes. The Supreme Court in All India Indian Overseas Bank SC and ST employees' welfare association v. Union of India (Supra) held that 'all the procedural powers of civil court given to the National Commission for Schedule Caste and Schedule Tribe by Article 338(8) of the Constitution of India are for the limited purpose of investigating any matter under Article 338(5)(a) or inquiring into any complaint, under 338(5)(b). 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. The Commission having not been specifically granted any power to issue interim injunctions, lacks the authority to issue an order of the type found in the letter dated 4.3.1993 directing the Bank to stop the promotion process 12 pending further investigation and final verdict in the matter'.
13. In the instant case the third respondent
- company issued articles of charges on 29.1.2004 to the fourth respondent stating that he indulged in corrupt practices, neglected to discharge his duties, acted in a manner prejudicial to the interest of the company, indiscipline, made false statement before the superiors, favoritism for pecuniary benefit etc. Since the reply of the fourth respondent was not satisfactory, the disciplinary authority initiated inquiry proceedings. On 13.6.2005 the inquiry officer submitted his report stating that the charges levelled against the fourth respondent as proved. The disciplinary authority after providing an opportunity to the fourth respondent passed an order of penalty on 15.12.2005 removing the fourth respondent from service. Even the appeal filed by the fourth respondent came to be rejected vide order dated 27.1.2006 and 13 the same had become final. When the matter stood at that stage, the fourth respondent gave a complaint to the first respondent -Commission stating that injustice has been caused to him. The second respondent being the member of the first respondent - Commission visited the third respondent - company at Bangalore and held a meeting with the officers of the company. In the said meeting the second respondent directed the third respondent to conduct a fresh inquiry, to treat fourth respondent as deemed to have been continued in service and to pay him the salary and other allowances. By this impugned direction the second respondent virtually set asides the inquiry report dated 13.6.2005, order of penalty dated 15.12.2005 and the order of appellate authority dated 27.1.2006. Therefore the impugned direction issued by the second respondent is without power and authority. Under Article 338 of the 14 Constitution the second respondent is not empowered to set aside a concluded inquiry and the order of penalty and the order of appellate authority. Therefore the impugned direction issued by the second respondent is liable to be quashed."
7. Reliance is placed by the learned Additional Government Advocate on another unreported ruling of the Delhi High Court in the case of Delhi Transport Corporation Vs Manohar Lal and Anr which has considered the observation of this Court and was pleased to set aside the directions issued by the Commission impugned therein.
8. In the instant case there is no dispute with regard to the fact that the second respondent is devoid of any authority to issue directions in the matters of promotion or issue any direction to alter service condition of any employee which virtually 15 amounts to impinging on the jurisdiction of the courts and Tribunals and the competent authorities. Hence, the instant petition is allowed. The recommendations/order of the second respondent is quashed.
9. It is made clear that quashing of the impugned proceedings cannot be construed as a pronouncement on the rights of the first respondent. It is open for the first respondent to agitate his rights in a manner known to law and before the appropriate forum.
No order as to costs.
Sd/-
JUDGE SBN