Calcutta High Court (Appellete Side)
Amitava Banerjee vs Debts Recovery Tribunal-I Kolkata & ... on 7 September, 2011
Author: Patherya
Bench: Patherya
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(APPELLATE SIDE)
Present : The Hon'ble Justice Nadira Patherya
W. P. No.22023 (W) of 2005
CAN 16214 of 2005
AMITAVA BANERJEE
VERSUS
DEBTS RECOVERY TRIBUNAL-I KOLKATA & OTHERS
For the Petitioners : Mr. P.D. Mukherjee.
Mr. D.N. Mitra.
For the Respondent : Mr. R.N. Das.
Mr. Pradip Kumar Roy.
Mr. G.S. Makker Mr. Debashis Pal.
Heard on : 10.03.06,03.04.06,12.04.06,24.07.06.
27.04.07 and 18.05.07
Judgment on : 7th September, 2011.
Patherya J. :
By this writ petition the petitioner seeks to challenge the complaint dated 22nd December, 2004, the investigation report, letters directing further action against the petitioner and to quash the said documents.
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The case of the petitioner is that a complaint was lodged by one Shib Shankar Naskar on 22nd December, 2004 wherein it was alleged that casteist remarks had been made by the petitioner while posted on deputation as Assistant Registrar in the Debts Recovery Tribunal-I Kolkata. Such complaint was made to the National Commission for Schedule Caste who on receipt of the said complaint, directed the Registrar Kolkata Debts Recovery Tribunal to make an enquiry and submit a report within the time specified in the letter dated 4th February, 2005. The Registrar, acting as the Investigating Officer undertook investigation by calling for statements from various witnesses. One of the witnesses who submitted a statement was the Register himself. A statement was also sought from the petitioner and the same was given. Thereafter report was prepared on 23rd March, 2005 and the same was forwarded to the National Commission. Although the Investigation Report is dated 23rd March, 2005 no copy of the report was given to the petitioner till 10th September, 2005. The Registrar functioned in two capacities-one as an Investigating Officer and the other as the Registrar. This will be evident from not only the report dated 23rd March, 2005 but also statements dated 7th February, 2005. The report prepared by the Investigating Officer was forwarded to the Presiding Officer DRT-I Kolkata instead of to the National Commission who had in fact sought an investigation to be made by the Investigating Officer. The Presiding Officer on receipt of the report forwarded the same to the National Commission Kolkata Chapter, which in turn sent it to the National Commission. Initially the petitioner was on deputation for three years that is from 10th April, 2002 to 9th April, 2005 but an 3 extension was granted on 10th April, 2005 to 9th April, 2006. Repatriation was sought to be made on 18th October, 2005 which was served on the petitioner on 17th March, 2006.
Article 338(5)(b) empowers the Commission to make an enquiry into a complaint made and such power cannot be delegated. It is only on the basis of the investigation made by the National Commission that it has to decide whether the person against whom complaint has been made can be punished under Section 3(1) (x) of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (1989 Act). Section 4 deals with punishment for neglect to perform duties. The report was considered at the meeting held on 20th September, 2005. In the affidavit filed by the Respondent nos. 6,7 and 8 it has been specifically stated that as per Article 338 of the Constitution of India the Commission was to investigate into the matter. Therefore, it was incumbent on the Presiding Officer to carry out such investigation and not delegate its power to the Registrar to conduct the enquiry. The writ petitioner is a Group-A Officer and belongs to the Intelligence Bureau and without the permission of the Secretary Intelligence no investigation against him could have been initiated. In not taking such permission Rule 38 of the Transaction of Business Rules of the Central Government have not been followed. Enquiry by the Registrar is bad as it was initiated on 3rd February, 2005 on the basis of a telephonic message and much before 21st February, 2005. This will be evident from the letters addressed by the Investigating Officer on 3rd February, 2005 calling for statements from some of 4 the staff members. It will be also evident from the statement of the Registrar himself dated 7th February, 2005. Therefore, prior to receipt of the representation and direction to carry out the investigation the process of investigation was initiated on the direction of the National Commission over telephone. As per the Central Service Rules it is the disciplinary authority who is to initiate the proceeding. The said procedure was also not followed by the appointing authority, and delegation if any could have been made only by the appointing authority. As the same has not been done the said proceedings are vitiated. The complaint is devoid of particulars regarding time, place or person in the presence of whom the said remarks were made. The aforesaid have not been specified in the said complaint. Decisions have also held that the comments must be made in public view which is not the case here. Therefore, the allegations are vague.
There was no scope for any communication between the complainant and the writ petitioner as the complainant worked under the Section Officers. It is only on the basis of the allegations made in the complaint and the findings of the Investigating Officer that action was directed to be taken under Section 3(1)(x) and Section 4 of the 1989 Act and an action report directed to be submitted. No charge sheet was submitted nor was the petitioner given an opportunity to deal with the charges levelled against him. Documents relied on were not initially furnished and therefore, the proceedings are vitiated as held in AIR 1988 SC 117 and AIR (1991) SC 471. Reliance is placed on 2003 Cr.LJ 1333. 2002 Cr.LJ 5 1251 and 2002 Cr.LJ 328. Reliance is also placed on AIR 1958 SC 86. All that the complaint of 2004 mentions is that the allegation was made in the chamber and therefore the same was not in public view. The remarks of open rebuke was also not in public view therefore the said allegations could not have been enquired into Reliance is placed on AIR 1986 SC 2160. In fact from a reading of the minutes of the meeting dated 20th September, 2005 of the National Commission it will appear that no opportunity of hearing was given by the Commission nor was any enquiry in fact made by the Commission nor an opportunity given to the petitioner to meet the charges. Therefore, the letters dated 4th July 2005 so also 20th September, 2005, along with the complaint and the direction to initiate enquiry is bad and void ab-initio. As there has been violation of the principles of Natural Justice the Enquiry Report and order dated 23rd March 2005 and 4th July, 2005 respectively be set-aside and the petitioner's leave be regularised.
Counsel for the Respondent nos. 1,2,7 and 9 submits that the proceedings initiated against the petitioner is not a disciplinary proceeding. Therefore, it is not a statutory order and is merely a domestic enquiry. The petitioner has treated the said proceedings as disciplinary in nature. The complaint is not a statutory order therefore cannot be quashed. The complainant though a necessary party is not a party in the writ petition and in his absence the complaint cannot be quashed. An investigation was made and report submitted on receipt of complaint. Investigation was required as the complaint related to 6 DRT 1 Calcutta therefore the National Commission sent it to the Presiding Officer for preliminary investigation. The complaint was with regard to the rights of a person belonging to the Schedule Caste and Schedule Tribe, and in case such complaint is proved will become an offence. The Investigation Report is preliminary in nature and not a statutory report therefore cannot be challenged. The enquiry is an in house enquiry and therefore is not required to be quashed. The letter dated 8th July, 2005 postulates action to be taken on the basis of the Investigation Report, and need not be quashed. It is on the basis of the complaint that an investigation was made and report submitted, based on which further action has been directed by lodging an FIR. It is only after filing of an FIR that for the first time an investigation will be made by the Police. It is only then an opportunity of hearing will be given to the petitioner. Therefore the reliefs sought in this writ petition cannot be granted as the matter is within the domain of the Police and calls for no interference by the writ Court.
Article 338(5) and 338(8) is contained in Part XVI of the Constitution and the duty of the Commission is to make an enquiry on the complaint lodged. Although the powers of the Civil Court is to be exercised but the procedure followed by the Civil Court is not to be followed. Section 3(1)(x) of the 1989 Act postulates punishment varying from six months to five years. The complaint was considered and all Principles of Natural Justice were followed as objection was called and the same was submitted and it is only thereafter that the report was prepared and forwarded to the National Commission and FIR filed. The law is to 7 take its own course after the Police makes necessary enquiry. The National Commission is not a Tribunal or Court. A Special Court is to be constituted under the 1989 Act. It is only when the Special Court is in seisin of the matter that the Principles of Natural Justice are to be applied. The reliefs sought are beyond the scope of the writ petition, and no reliefs can be granted. The cases cited by the petitioner are distinguishable as each case is in respect of disciplinary proceedings. Therefore no order, be passed on this application. In view of Section 3 of the 1989 Act it is the Code of Criminal Procedure and the provision of the Indian Penal Code which will apply.
Counsel for the petitioner in reply submits that although it is not a service matter but relates to the petitioner's service. The Recovery Officer in his deposition has not given any specific date on which the incident occurred although he has deposed as a witness to the incident. No particulars have been given and therefore the enquiry is vague. The Registrar has relied on his own statement as witness. The complaint was made to the National Commission who called upon the Registrar who in turn asked the Presiding Officer to look into the complaint. The witnesses have also not been examined or cross-examined although a preliminary report has been given on 4th July 2005. The departmental enquiry though made the formalities of such enquiry has not been followed. The preliminary investigation is in fact a departmental enquiry and principles of natural justice ought to have been followed. For non-compliance the orders dated 28th February, 2006, 2nd September, 2005 and 25th September, 8 2005 be set aside. Alternative remedy is not an absolute bar and the powers of a Special Court differs. No rules have been produced which empowers enquiry by bodies. The Central Administrative Tribunal has no power and it is only the National Commission which can investigate into the matter. Delegation by the Commission is bad and therefore reliefs as sought be granted.
Having considered the submissions of the parties the complaint was lodged with the National Commission which is the authority to make an enquiry into the complaint lodged under Article 338(5) of the Constitution of India. On receipt of such complaint the Commission sought an enquiry to be made by the Registrar DRT 1 Kolkata. An enquiry was made and report submitted to the Commission.
At the time of enquiry a copy of the complaint was sent to the petitioner and a reply was also given. The same was considered and a report submitted, on receipt whereof the National Commission called upon the Presiding Officer to take appropriate action against the petitioner under Section 3(1)(x) and Section 4 of the 1989 Act. Initially on the ground of inadequate infrastructure no step was taken but subsequent thereto an FIR was lodged against the petitioner.
The enquiry postulated under Article 338(5) is to be made by the National Commission. This will appear from Article 338(5) of the Constitution, which reads as follows :
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"It shall be the 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 reports 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 of any law made by Parliament, by the rules specify."10
The Report given to the National Commission by the Registrar DRT 1 Calcutta has been accepted by it and thereafter the authorities have been directed to take appropriate action under Section 3(1)(x) and Section 4 of the 1989 Act.
To quash the proceedings at this stage would amount to pre-judging the issue which is pending investigation with out considering the documents or examining the witnesses.
The enquiry which was held was an internal enquiry before initiation of process. Therefore this application is premature and calls for no interference.
The decisions cited by the petitioner are all of cases where process had been initiated after lodging of complaint.
Whether the remarks were made in "public view" to attract Section 3(1)(x) of the 1989 Act cannot be decided in these proceedings as the said issue is a question of fact disputed by the petitioner. This raises disputed questions of fact which the writ Court cannot go into. Accordingly this application fails and is dismissed.
(Patherya J.) 11 Later In view of order passed this day CAN 16214 of 2005 is also dismissed.
(Patherya J.)