Kerala High Court
Thalassery Municipality vs Kerala State Human Rights Commission on 16 January, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 16TH DAY OF JANUARY 2020 / 26TH POUSHA, 1941
WP(C).No.1193 OF 2020
PETITIONER:
THALASSERY MUNICIPALITY,
THALASSERY, KANNUR,
REPRESENTED BY SECRETARY MANOHAR K,
S/O. NANUKURUPPU, AGED 53 YEARS,
RESIDING AT MUNICIPAL COMMISSIONERS QUARTERS,
THALASSERY-670 101.
BY ADV. SRI.I.V.PRAMOD
RESPONDENTS:
1 KERALA STATE HUMAN RIGHTS COMMISSION
REPRESENTED BY ITS SECRETARY,
THIRUVANANTHAPURAM-695 001.
2 SECRETARY TO GOVERNMENT
HOME DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
3 VIMAL K., AGED 37 YEARS,
S/O. LEELA, ROOM NO.5, MUNICIPAL QUARTERS,
SOUTH BAZAR, THALAPPU P.O.,
KANNUR DISTRICT-670 002.
4 RAGESH K. S/O. LEELA, PULLAMBIL COLONY, P.O.
CHIRAKKARA, THALASSERY, KANNUR DISTRICT-670 101.
R2 by SR.GOVERNMENT PLEADER SRI.TEK CHAND
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C) No.1193/2020 2
"C.R"
JUDGMENT
Dated this the 16th day of January, 2020 S.Manikumar, CJ Instant writ petition is filed for the following reliefs:
i) To call for the records leading to Exhibit-P5 and issue a writ of certiorari, or writ in the nature of certiorari and quash Exhibit-P5.
ii) To declare that Exhibit P5 is illegal and ultra vires to the powers of the 1st respondent and it is passed without application of mind.
iii) To declare that clause 30 of the Kerala State Human Rights Commission (Procedure) Regulations, 2001 is illegal and ultra vires to the powers conferred under Section 10(2) r/w. Section 29 of the Protection of Human Rights Act, 1993.
2. Short facts leading to the filing of the writ petition are that a sanitation worker of Thalassery Municipality died on 11.09.2005 while she was in service. Her son, respondent No.4, submitted an application on 17.10.2006 for getting pensionary benefits. Along with the application, he produced death certificate, legal heir-ship certificate and the certificate showing his age. Thereafter, he was issued with several communications directing to produce the required documents. According to the petitioner, he has failed to comply with the same.
3. On 26.07.2018, he preferred another application claiming pensionary benefits, which was not considered for the reason that by that W.P(C) No.1193/2020 3 time he had crossed the age of 25 years. According to the petitioner, as per Rule 90(3) of Part III KSR, male children aged about 25 years are not entitled to pension. Respondent No.3, brother of the 4th respondent, approached Kerala State Human Rights Commission, respondent No.1, by filing HRMP No.8679/ 2018/KNR, wherein the Municipality entered appearance and filed a statement on 30/10/2018 refuting the contentions of the 3 rd respondent. Similarly, the 3rd respondent preferred another complaint before the Scheduled Caste/Scheduled Tribe Commission, Thiruvananthapuram. The petitioner gave a reply and the Commission has passed an order dated 20.12.2018 (Exhibit-P4) directing that the documents have to be produced on time without any delay, and provident fund and other benefits have to be granted to the legal heirs as soon as possible.
4. Meanwhile, Kerala State Human Rights Commission has passed another order dated 19.12.2018 (Exhibit-P5) directing the petitioner to pay the entire benefits to the legal heirs, within two months and report compliance, on production of death certificate.
5. Being aggrieved, instant writ petition is filed on the grounds, inter alia, as under:
A. Exhibit P5 order passed by the member of 1 st respondent Commission is totally against the Protection of Human Rights Act, 1993. Section 21 of the Protection of Human Rights Act, 1993 (hereinafter referred to as the Act) deals with Constitution of W.P(C) No.1193/2020 4 State Human Rights Commission. The opening word of the Section 21 is that "A State Government may constitute a body to be known as the ------ --- (Name of the State) Human Rights Commission to exercise the powers conferred upon and to perform the functions assigned to a State Commission under this Chapter." Therefore, a member alone cannot constitute a Commission because, as per S.21(1), the Human Rights Commission is a body with 3 members, including a Chairperson.
B. As per Section 9 of the Act, no act or proceedings of the Commission shall be questioned, or shall be invalidated merely on the ground of existence of any vacancy or defect in the constitution of the Commission. For State Commissions, the above provision is made applicable and, therefore, if the order is not passed by the Chairman and members of the Commission jointly, the order is invalid.
C. Clause 30 of the Human Rights Commission (Procedure) Regulations, 2001 specifies Constitution of Benches. Sub clause (a) is as follows:-
"Subject to such general or special orders as may be issued by the Chairperson, all complaints shall be dealt with by a Single Bench of the Commission. If, however the Bench dealing with a particular complaint, having due regard to the nature of the issue involved is of the opinion that the case should be considered by a Division Bench/ Full bench: the Single Bench may refer the case to the Chairperson who may constitute a Division Bench or Full Bench as the case may be, and refer the case to the Bench so constituted.
Further clause (b) says that, when a case is referred to a Division Bench/Full Bench, the Court Officer/Section Officer concerned W.P(C) No.1193/2020 5 shall have the requisite number of copies of the case file prepared for the use of all members in the Bench. Both these clauses are ultra virus to the powers given to the Human Rights Commission by the legislature and is liable to be set aside."
H. If a member of the Commission is allowed to pass orders, it will be against the intention of the legislature. In similar enactments such as Women's Commission Act, Consumer Protection Act and National Judicial Appointment Commission Act r/w Article 124--A of Constitution of India, the appointment powers and functions are similar in nature. Therefore, it is clear that a single member of the commissioner cannot constitute the Commission."
6. Exhibit-P3 reply given by the petitioner Municipality to the Kerala State Human Rights Commission, Thiruvananthapuram, is extracted hereunder:
"No. A4/23970/2006 30/10/2018 30/10/2018 Registrar, Hon'b1e Kerala State Human Rights Commission, Thiruvananthapuram Sir, Sub:- Thalassery Municipality-Accounts Department-Pension Benefits of sanitation worker of Late Leela- Regarding;
Ref:- letter No. HRMP No. 8679/ 18 /KNR dated 11/ 10/ 2018 of Hon'ble Registrar of Kerala State Human Rights Commission.
Seeking your attention to the reference cited above Mrs. Leela, D/o. Chathan, sanitation worker Municipality Thalassery, died on 11/9/2005. The son of the deceased submitted an application 17/10/2006 to grant the pension benefits. The Municipality sent a notice dated 24/12/2007 to the son of the deceased who produce two pension book and one photo. Since Mr.Rakesh was out of station W.P(C) No.1193/2020 6 his sister Vinodini received the notice on 22/3/2008 in his absence. But no response was there from their part, so that we could not act upon it.
Again on 26/7/2018 an application had submitted by Mr. Ragesh to get the pension benefit. As per the school admission abstract submitted by Mr. Ragesh along with the application filed on 17/10/2006 his age is 32 years as per Rule 90 (6), Part III of Kerala Service Rules the male children who above the age of 25 years cannot be granted with family Pension.
We have taken the necessary steps to grant PF benefits of Mrs. Leela, the deceased. It is also submitted that the son of the decease got appointment in dying-in-harness in the Thalassery Municipality as a sanitation worker.
Yours faithfully, Sd/ -
Secretary, Thalassery Municipality Despatched 01.11.2018 Copy to:--Vimal K, Room No. 5
Municipal Quarters, South Bazar, Kannur"
7. Exhibit-P4 order dated 20.12.2018 of the Schedule Caste and Schedule Tribe Commission is extracted hereunder:
"KERALA STATE SCHEDULE CASTE AND SCHEDULE TRIBE COMMISSION Ayyangali Bhavan, Kanakanagar, Vellayambalam, Thiruvananthapuram 3 Presided by :Sri.B.S. Mavoji, IAS (Rtd.), Chairman Complainant : Vimal K, Room No.5, Municipal Quarters, South Bazar, Kannur.
Respondent : 1) Director, Urban Affairs, Swaraj Bhavan Nandankode, Thiruvananthapuram.W.P(C) No.1193/2020 7
2) Secretary Thalassery Municipality, Kannur Sub:- regarding- the denial of pension benefits to the legal heirs Order (Appearing for the Commission: Sri. B.S. Mavoji, IAS (Rtd), Chairman) Mr. Vimal.K. is the complainant and A1 is the complaint filed by him. The complaint is regarding the denial of pension benefits of the deceased, the mother of the complainant who died on 11/9/2004 while she was in service.
Today when the petition came up for consideration, the complainant appear. The respondent appeared and submitted the report. D1 and D2 are the reports. As per B2 it is submitted that since the required documents could not be produced on time by the complainant the Municipality could not take action on time. The Municipality had taken the necessary steps to get the pension benefits of the deceased, and also the son of the deceased has appointed as sanitation worker in the municipality in dying-in- harness. Since the applicant failed to produce the required documents on time and the age of the applicant Mr. Ragesh is about 25 years he is not entitle to get the family pension.
It is hereby direct that the documents have to be produced on time without any delay and the PF and other benefits has to be granted to the legal heirs as soon as possible.
Dated this the 20th day of December, 2018.
Sd/-
Sri.B.S.Mavoji, IAS (Rtd.) Chairman List of documents submitted by the complainant : Complaint filed by Mr. Vimal.K before the commission List of documents submitted by the respondent :Report No. E2-25007/2018 dated 19/l2/2018 of the Director, Urban Affairs.
Sd/-
Sri. B.S. Mavoji, IAS (Rtd), Chairman"W.P(C) No.1193/2020 8
8. Exhibit-P5 order dated 19.12.2018 of the Kerala State Human Rights Commission, Thiruvananthapuram, respondent No.1, is extracted hereunder:
"KERALA STATE HUMAN RIGHTS COMMISSION Presented : P. Mohandas Hon'ble Member H.R.M.P. NO.8679/2018 Complainant : Vimal K., Room No.5, Municipal Quarters, South Bazar, Kannur Order dated 19th December, 2018 According to the complaint the mother of the complainant Mrs. Leela died on 11/9/2004 while she was working as a sanitatin worker, and the Municipality denied granting the pension benefits to the legal heirs. To get the pension benefits, the legal heirs approached the Municipality several times and no action was taken from the part of the Municipality. The complainant, belongs to a schedule caste, submits that it has been 15 years he approached the Municipality on the same matter.
As per the report of Secretary, Thalassery Municipality the mother of the complainant died on 11/9/2004 which she was in service and the son of the deceased Mr.C.K. Unni is appointed as a sanitation worker in dying-in-harness.
The Municipality had required the complainant to produce two photos and pension book for the purpose of granting pension benefits to the legal heirs. Since the complainant failed to produce the required documents on time it took a delay. The son of the deceased filed an application to get the pension benefits on 16/10/2009 along with that he had submitted his school admission W.P(C) No.1193/2020 9 abstract. According to the school admission abstract the age of the complainant is 32 years and the male children, are above the age of 25 years are not entitled to get the family pension.
The relief sought by the complainant, one is to get appointment in dying-in-harness and the second one is to get the pension benefits.
As per the report the male children who above the age of 25 years are not entitled to get the family pension. The legal heirs of the deceased are Vinodhan, Vinodhini, Ragesh, Bindura, Vimal. Since the age of Mr. Ragesh is above 32 years he is not entitled to get the family pension. The details of other children are not specified in the report. It is submitted by the complainant that Mrs. Leela died on 11/9/2004, but as per the respondent it is shown as 11/9/2005. No records are produced to prove the same.
It has to be decided that who all are entitled to get the family pension for that it is not the age of the legal heirs are to be considered. Therefore, it is directed to produce the death certificate of Mrs. Leela, the deceased, after that it has to be decided that who all are entitled to get the family pension. The Secretary has to take necessary steps to grant the pension benefits with arrears. It is directed that the Secretary, Thalassery Municipality to submit the report on the same within two months.
Sd/-
P.Mohandas Member Kerala State Human Rights Commission"
9. Heard learned counsel for the parties and perused the material available on record.
W.P(C) No.1193/2020 10
10. Section 10 of the Protection of Human Rights Act, 1993, deals with procedure to be regulated by the Commission and the same is reproduced:
"10. Procedure to be regulated by the Commission:--
(1) The Commission shall meet at such time and place as the Chairperson may think fit.
(2) Subject to the provisions of this Act and the rules made thereunder, the Commission shall have the power to lay down by regulations its own procedure.
(3) All orders and decisions of the Commission shall be authenticated by the Secretary-General or any other officer of the Commission duly authorised by the Chairperson in this behalf."
11. Section 13 of the Act deals with the powers relating to inquiries. The same is extracted hereunder:
"13. Powers relating to inquiries.-
(1) The Commission shall, while inquiring into complaints under this Act, have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, and in particular in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of witnesses and examining them on oath;
(b) 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 for witnesses or documents;
(f) any other matter which may be prescribed.
(2) The Commission shall have power to require any person, subject to any privilage which may be claimed by that W.P(C) No.1193/2020 11 person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the Commission, may be useful for, or relevant to, the subject matter of the inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of section 176 and section 177 of the Indian Penal Code. (3) The Commission or any other officer, not below the rank of a Gazetted Officer, specially authorised in this behalf by the Commission may enter any building or place where the Commission has reason to believe that any document relating to the subject matter of the inquiry may be found, and may seize any such document or take extracts or copies there from subject to the provisions of section 100 of the Code of Criminal Procedure, 1973, (2 of 1974) in so far as it may be applicable. (4) The Commission shall be deemed to be a civil court and when any offence as is described in section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code is committed in the view or presence of the Commission, the Commission may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1973, forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case has been forwarded to him under section 346 of the Code of Criminal Procedure, 1973.W.P(C) No.1193/2020 12
(5) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196, of the Indian Penal Code, and the Commission shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
(6) Where the Commission considers it necessary or expedient so to do, it may, by order, transfer any complaint filed or pending before it to the State Commission of the State from which the complaint arises, for disposal in accordance with the provisions of this Act:
Provided that no such complaint shall be transferred unless the same is one respecting which the State Commission has jurisdiction to entertain the same.
(7) Every complaint transferred under sub-section (6) shall be dealt with and disposed of by the State Commission as if it were a complaint initially filed before it."
12. Sections 21 and 29 of the Protection of Human Rights Act, 1993 are extracted hereunder:
"21. Constitution of State Human Rights Commissions:
(1) A State Government may constitute a body to be known as the ....................... (Name of the State) Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to, a State Commission under this Chapter.
(2) The State Commission shall, with effect from such date as the State Government may by notification specify, consist of-W.P(C) No.1193/2020 13
(a) a Chairperson who has been a Chief Justice of a High Court;
(b) one Member who is, or has been, a Judge of a High Court or District Judge in the State with a minimum of seven years experience as District Judge;
(c) one Member to be appointed from among persons having knowledge of or practical experience in matters relating to human rights.
(3) There shall be a Secretary who shall be the Chief Executive Officer of the State Commission and shall exercise such powers and discharge such functions of the State Commission as it may delegate to him.
(4) The headquarters of the State Commission shall be at such place as the State Government may, by notification, specify.
(5) A State Commission may inquire into violation of human rights only in respect of matters relatable to any of the entries enumerated in List II and List III in the Seventh Schedule to the Constitution:
Provided that if any such matter is already being inquired into by the Commission or any other Commission duly constituted under any law for the time being in force, the State Commission shall not inquire into the said matter:
Provided further that in relation to the Jammu and Kashmir Human Rights Commission, this sub-section shall have effect as if for the words and figures "List ll and List lll in the Seventh Schedule to the Constitution", the words and figures "List lll in the Seventh Schedule to the Constitution as applicable to the State of Jammu and Kashmir and in respect of matters in relation to which the Legislature of that State has power to make laws" had been substituted.
(6) Two or more State Governments may, with the consent of a Chairperson or Member of a State Commission, appoint such Chairperson or, as the case may be, such Member of another State Commission simultaneously if such Chairperson or Member consents to such appointment:W.P(C) No.1193/2020 14
Provided that every appointment made under this sub- section shall be made after obtaining the recommendations of the Committee referred to in sub-section (1) of section 22 in respect of the State for which a common Chairperson or Member, or both, as the case may be, is to be appointed."
29. Application of certain provisions relating to National Human Rights Commission to State Commission.--The provisions of sections 9, 10, 12, 13, 14, 15, 16, 17 and 18 shall apply to a State Commission and shall have effect, subject to the following modifications, namely:--
(a) references to "Commission" shall be construed as references to "State Commission";
(b) in section 10, in sub-section (3), for the words "Secretary-General", the word "Secretary" shall be substituted;
(c) in section 12, clause (f) shall be omitted;
(d) in section 17, in clause (i), the words "Central Government or any" shall be omitted."
13. As per Section 29 of the Act, provisions of Sections 9, 10, 12 to 18 shall apply to a State Commission. Sections 9, 12 and 14 to 18 of the Act are extracted hereunder:
"9. Vacancies, etc., not to invalidate the proceedings of the Commission:- No act or proceedings of the Commission shall be questioned or shall be invalidated merely on the ground of existence of any vacancy or defect in the constitution of the Commission.
12. Functions of the Commission.--The Commission shall perform all or any of the following functions, namely:--
(a) inquire, suo-motu or on a petition presented to it by a victim or any person on his behalf 1[or on a direction or order of any court], into complaint of--W.P(C) No.1193/2020 15
(i) violation of human rights or abetment thereof; or
(ii) negligence in the prevention of such violation, by a public servant;
(b) intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;
(c) visit, notwithstanding anything contained in any other law for the time being in force, any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the inmates thereof and make recommendations thereon to the Government;"
(d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;
(e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures;
(f) study treaties and other international instruments on human rights and make recommendations for their effective implementation;
(g) undertake and promote research in the field of human rights;
(h) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;
(i) encourage the efforts of non-governmental organisation and institutions working in the field of human rights; W.P(C) No.1193/2020 16
(j) such other functions as it may consider necessary for the promotion of human rights."
14. Investigation.--
(1) The Commission may, for the purpose of conducting any investigation pertaining to the inquiry, utilise the services of any officer or investigation agency of the Central Government or any State Government with the concurrence of the Central Government or the State Government, as the case may be. (2) For the purpose of investigating into any matter pertaining to the inquiry, any officer or agency whose services are utilised under sub-section (1) may, subject to the direction and control of the Commission,--
(a) summon and enforce the attendance of any person and examine him;
(b) require the discovery and production of any document;
and
(c) requisition any public record or copy thereof from any office.
(3) The Provisions of section 15 shall apply in relation to any statement made by a person before any officer or agency whose services are utilised under sub-section (1) as they apply in relation to any statement made by a person in the course of giving evidence before the Commission. (4) The officer or agency whose services are utilised under sub- section (1) shall investigate into any matter pertaining to the inquiry and submit a report thereon to the Commission within such period as may be specified by the Commission in this behalf.
(5) The Commission shall satisfy itself about the correctness of the facts stated and the conclusion, if any, arrived at in the W.P(C) No.1193/2020 17 report submitted to it under sub-section (4) and for this purpose the Commission may make such inquiry (including the examination of the person or persons who conducted or assisted in the investigation) as it thinks fit."
15. Statement made by persons to the Commission.--No statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such statement:
Provided that the statement--
(a) is made in reply to the question which he is required by the Commission to answer; or
(b) is relevant to the subject matter of the inquiry.
16. Persons likely to be prejudicially affected to be heard.--If, at any stage of the inquiry, the Commission--
(a) considers it necessary to inquire into the conduct of any person; or
(b) is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, it shall give to the person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence:
Provided that nothing in this section shall apply where the credit of a witness is being impeached.
17. Inquiry into complaints.--The Commission while inquiring into the complaints of violations of human rights may--
(i) call for the information or report from the Central Government or any State Government or any other authority or organisation subordinate thereto within such time as may be specified by it: Provided that-- W.P(C) No.1193/2020 18
(a) if the information or report is not received within the time stipulated by the Commission, it may proceed to inquire into the complaint on its own;
(b) if, on receipt of information or report, the Commission is satisfied either that no further inquiry is required or that the required action has been initiated or taken by the concerned Government or authority, it may not proceed with the complaint and inform the complainant accordingly;
(ii) without prejudice to anything contained in clause (i), if it considers necessary, having regard to the nature of the complaint, initiate an inquiry.
18. Steps during and after inquiry.--The Commission may take any of the following steps during or upon the completion of an inquiry held under this Act, namely:-- "
(a) where the inquiry discloses the commission of violation of human rights or negligence in the prevention of violation of human rights or abetment thereof by a public servant, it may recommend to the concerned Government or authority--
(i) to make payment of compensation or damages to the complainant or to the victim or the members of his family as the Commission may consider necessary;
(ii) to initiate proceedings for prosecution or such other suitable action as the Commission may deem fit against the concerned person or persons;
(iii) to take such further action as it may think fit.";
(b) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary;
(c) recommend to the concerned Government or authority at any stage of the inquiry for the grant of such immediate interim relief to the victim or the members of his family as W.P(C) No.1193/2020 19 the Commission may consider necessary;
(d) subject to the provisions of clause (e), provide a copy of the inquiry report to the petitioner or his representative;
(e) the Commission shall send a copy of its inquiry report together with its recommendations to the concerned Government or authority and the concerned Government or authority shall, within a period of one month, or such further time as the Commission may allow, forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission;
(f) the Commission shall publish its inquiry report together with the comments of the concerned Government or authority, if any, and the action taken or proposed to be taken by the concerned Government or authority on the recommendations of the Commission."
14. Section 40B of the Protection of Human Rights Act, 1993 speaks about the power of the Commission to make regulations. Said section reads as under:
"40B. Power of Commission to make regulations.--
(1) Subject to the provisions of this Act and the rules made thereunder, the Commission may, with the previous approval of the Central Government, by notification, make regulations to carry out the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:--
(a) the procedure to be followed by the Commission under sub-section (2) of section 10;
(b) the returns and statistics to be furnished by the State Commissions;W.P(C) No.1193/2020 20
(c) any other matter which has to be, or may be, specified by regulations.
(3) Every regulation made by the Commission under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation."
15. In exercise of the powers conferred by sub-section (2) of Section 10 of the Protection of Human Rights Act, the National Human Rights Commission (Procedure) Regulations, 1994 have been framed. Regulation 8 of the National Human Rights Commission (Procedure) Regulations deals with the procedure for dealing with complaints. Said regulation is extracted hereunder:
"8.Procedure for dealing with complaints:(1) All complaints in whatever from received by the Commission, shall be registered and assigned a number and placed for admission as per the special and general directions of the Chairperson before a Single Member Bench constituted for the purpose, not later than one week of receipt thereof. If the Single-Member Bench dealing with the case, either for admission or for final disposal, having regard to the importance of the issues involved, is of the opinion that the case should be heard by a Bench of not less than two Members, he/she may refer the case to a Bench of two W.P(C) No.1193/2020 21 Members. On receipt of the reference, the case shall be assigned to a Bench of two or more Members, as may be constituted by the Chairperson. Ordinarily complaints of the following nature are not entertainable by the Commission.
(a) in regard to events which happened more than one year before the making of complaints;
(b) with regard to matters which are sub-judice;
(c) which are vague, anonymous or pseudonymous;
(d) which are of frivolous nature; or
(e) those which are outside the purview of the Commission.
(2) No fee is chargeable on complaints.
(3) Every attempt should be made to disclose a complete picture of the matter leading to the complaint and the same may be made in English or Hindi to enable the Commission to take immediate action. To facilitate the filing of complaints, the Commission shall, however, entertain complaints in any language included in Eighth Schedule of the Constitution. It shall be open to the Commission to ask for further information and affidavits to be filed in support of allegations whenever considered necessary.
(4) The Commission may, in its discretion, accept telegraphic complaints and complaints conveyed through Fax.
(5) The Commission shall have power to dismiss a complaint in limini.
(6) Upon admission of a complaint, the Chairperson/Commission shall direct whether the matter would be set down for inquiry by it or should be investigated into.
(7) On every complaint on which a decision is taken by the Chairperson/Commission to either hold an inquiry or W.P(C) No.1193/2020 22 investigation, the Secretariat shall call for reports/comments from the concerned Government/authority giving the latter a reasonable time therefor.
(8) On receipt of the comments of the concerned authority, a detailed note on the merits of the case shall be prepared for consideration of the Commission.
(9) The directions and recommendations of the Commission shall be communicated to the concerned Government/authority and the petitioner as provided for in sections 18 and 19 of the Act.
(10) The Commission may, in its discretion, afford a personal hearing to the petitioner or any other person on his behalf and such other person or persons as in the opinion of the Commission should be heard for appropriate disposal of the matter before it and, where necessary, call for records and examine witnesses in connection with it. The Commission shall afford a reasonable hearing, including opportunity of cross-examining witnesses, if any, in support of the complaint and leading of evidence in support of his stand, to a person whose conduct is enquired into by it or where in its opinion the reputation of such person is likely to be prejudicially affected.
(11) Where investigation is undertaken by the team of the Commission or by any other person under its discretion, the report shall be submitted within a week of its completion or such further time as the Commission may allow. The Commission may, in its discretion, direct further investigation in a given case if it is of opinion that investigation has not been proper or the matter requires further investigation for ascertaining the truth or enabling it to properly dispose of the matter. On receipt of the W.P(C) No.1193/2020 23 report, the Commission on its own motion, or if moved in the matter, may direct inquiry to be carried by it and receive evidence in course of such inquiry.
(12) The Commission or any of its members when requested by the Chairperson may undertake visits for an on-the-spot study and where such a study is undertaken by one or more members, a report thereon shall be furnished to the Commission as early as possible."
16. In exercise of the powers conferred by Section 10(2) read with Section 29 of the Protection of Human Rights Act, 1993 (Central Act 10 of 1994), the Kerala State Human Rights Co mmission has made the Kerala State Human Rights Commission (Procedure) Regulations, 2001. Regulation 2(b) of the said Regulations defines 'Chairperson' and the same is extracted hereunder:
"2(b). "Chairperson" means the Chairperson of the (Central Act 10 of 1994) Commission."
17. Regulation 2(d) defines 'Commission' and the same is reproduced:
"2(d). "Commission" means the Kerala State Human Rights Commission."
18. Regulation 2(i) defines 'Division Bench' and the same is reproduced:
"2(i). "Division Bench" means a Bench consisting of two members of the Commission or a Bench consisting of the Chairperson and one member as may be constituted by the Chairperson:"
19. Regulation 2(k) defines 'Full Bench' and the same is reproduced:
"2(k). "Full Bench means a Bench consisting of the Chairperson and two members of the Commission as may be constituted by the Chairperson.W.P(C) No.1193/2020 24
20. Regulation 2(s) defines 'Single Bench' and the same is reproduced:
2(s). "Single Bench" means a Bench consisting of the Chairperson or one member of the Commission, as may be constituted by the Chairperson.
21. Regulation 30 of the Regulations is extracted hereunder:
"30. Constitution of Benches.- (a) Subject to such general or special orders as may be issued by the Chairperson, all complaints shall dealt with by a Single Bench of the Commission. If, however, the Bench dealing with a particular complaint, having due regard to the nature of the issue involved is of the opinion that the case should be considered by a Division Bench/Full Bench; the Single Bench may refer the case to the Chairperson who may constitute a Division Bench or Full Bench, as the case may be, and refer the case to the Bench so constituted.
(b) When a case is referred to a Division Bench/Full Bench the Court Officer/Section Officer concerned shall have the requisite number of copies of the case file prepared for the use of all the Members in the Bench."
22. A conjoint reading of Section 10 read with Section 40B of the Protection of Human Rights Act, 1993 empowers the National Human Rights Commission to frame regulations prescribing the procedure to be followed by the National Commission under sub-section (2) of Section 10. Similarly, Regulation 30 of the Kerala State Human Rights (Procedure) Regulations, 2001, empowers the Chairperson to constitute Benches. Complaints can be dealt with by a Single Bench of the Commission. If, however, the Bench W.P(C) No.1193/2020 25 dealing a particular complaint, having due regard to the nature of the issue involved is of the opinion that, the case should be considered by a Division Bench/Full Bench: the Single Bench may refer the case to the Chairperson who may constitute a Division Bench of Full Bench, as the case may be, and refer the case to the Bench so constituted. Therefore, the contention of the petitioner to the contrary that a Single Member of the Commission cannot constitute a Bench is erroneous and untenable. No serious contentions were made on merits of the impugned order.
In the light of the statutory provisions, order dated 19.12.2018 passed by the Kerala State Human Rights Commission, Thiruvananthapuram (Exhibit- P5) is sustained. Writ petition is dismissed. No costs.
Sd/-
S.MANIKUMAR, CHIEF JUSTICE Sd/-
SHAJI P.CHALY, JUDGE krj.16/1 W.P(C) No.1193/2020 26 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE APPLICATION DATED 17.10.2006.
EXHIBIT P2 A TRUE COPY OF THE PETITION DATED NIL FILED BY THE 3RD RESPONDENT.
EXHIBIT P3 A TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER BEFORE THE IST RESPONDENT.
EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 20.12.2018 OF SCHEDULE CASTE AND SCHEDULE TRIBE COMMISSION.
EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 19.12.2018 OF THE IST RESPONDENT.
///TRUE COPY// P.A. TO JUDGE