Jammu & Kashmir High Court - Srinagar Bench
State Of J&K vs J&K State Human Rights Commission And ... on 2 April, 2021
Bench: Chief Justice, Vinod Chatterji Koul
S.no. 218 HIGH COURT OF JAMMU AND KASHMIR
After Notice
Cause List AT SRINAGAR
...
OWP no.1756/2018
c/w OWP nos.243/2018; 370/2018; 979/2018
1623/2018; 2091/2017
State of J&K
....... Petitioner(s)
Through: Mr B.A.Dar, Sr. AAG
Versus
J&K State Human Rights Commission and others
.........Respondent(s)
Through: None
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
ORDER
02.04.2021
1. This batch of writ petitions is against orders passed by the J&K Human Rights Commission (for short "Commission"). The writ petitions are taken up and decided ad seriatim.
OWP no.1756/20182. In this writ petition, orders dated 20th July 2018 and 4th September 2018, passed by the Commission are under challenge.
3. It appears from perusal of the file that a complaint had been filed by one Ghulam Rasool Najar son of Ghulam Mohi-ud-din Najar resident of Kumullah Akhal Kangan, Ganderbal, which was disposed of by the Commission on 15th September 2017 with a recommendation to the Government. After disposal of the complaint, the Commission by impugned order dated 20th July 2018 asked Deputy Secretary to Government, Home Department to cause appearance before the Commission and explain the report orally. Thereafter by another order dated 4th September 2018, impugned herein, the Commission asked Home Secretary to appear in person before the Commission on next date of hearing to explain the decision taken by the Empowered Committee.
2 OWP no.1756/2018c/w OWP nos.243/2018; 370/2018;
979/2018; 1623/2018; 2091/2017
4. Mr B.A. Dar, learned Sr.AAG, appearing for petitioner, has stated that order of personal appearance dated 20th July 2018 as well as order dated 4th September 2018 are bad in the eyes of law as petitioner has taken action on the recommendations of respondent no.1 by placing the same before the Empowered Committee. The decision of the Empowered Committee, it is next averred, was communicated to respondent no.2. It is contended that petitioner has no authority to take individual decision on the recommendations of the Commission and he cannot be proceeded against for a collective decision taken by Empowered Committee. It is maintained that Commission has no jurisdiction to seek appearance of the State functionaries after making recommendations to the Government inasmuch as the Commission can only issue recommendations that too within parameters of powers and functions as provided under the J&K Protection of Human Rights Act, 1997 (for short "Act of 1997"). Mr Bashir also states that if the Commission takes cognizance in the matter which has otherwise been closed after the decision of Empowered Committee, it will create chaos and unending process of litigation as is the case in hand.
5. Given the case set up, it would be apt to go through and discuss the provisions of the Act of 1997. The Act of 1997 had been enacted in the Forty-eighth Year of the Republic of India by the erstwhile State of Jammu and Kashmir, aiming at providing for constitution of a State Human Rights Commission and Human Rights Courts for better protection of human rights and for matters connected therewith or incidental thereto. Section 2(b) of the Act of 1997 says that Commission means the State Human Rights Commission constituted under Section 3 of the Act.
6. Section 3 of the Act of 1997 provides that Government shall constitute a body to be known as the State Human Rights Commission to exercise the powers conferred upon and to perform the functions assigned to it under the Act of 1997. Section 4 of the Act of 1997 3 OWP no.1756/2018 c/w OWP nos.243/2018; 370/2018;
979/2018; 1623/2018; 2091/2017 envisions as to appointment of Chairperson and other Members of the Commission. Section 13 enumerates functions of the Commission. It would be, thus, profitable to reproduce Section 13 hereunder:
"13. Functions of the Commission.- The Commission shall perform all or any of the following functions, namely:-
(a) inquire, suo moto or on a petition presented to it by a victim or any person on his behalf, into complaint of-
(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 or violation of human rights pending before a court with the approval of such court;
(c) visit, under intimation to the Government, any jail or any other institution under the control of the Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living conditions of the inmates and make recommendations thereof;
(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 recommended 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) undertake and a promote research in the field of human rights;
(g) 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;
(h) encourage the efforts of non-governmental organizations and institutions working in the field of human rights;
(i) such other functions as it may consider necessary for the promotion of human rights."
7. A plain reading of Section 13, therefore, says that in respect of violation of human rights or abetment thereof, the commission shall inquire either suo moto or on a petition to be presented by a victim or any person on his behalf or on a direction or order of any Court.
8. If the Commission finds any violation of Human Rights or negligence in the prevention of Human Rights by a public servant, it may recommend to the Government or authority the initiation of proceedings for prosecution or such other action as is discernible from Section 19 of the Act, which having clinching effect on the instant case as well is reproduced infra:
"19. Steps after inquiry. - The Commission may take any of the following steps upon the completion of an inquiry held under this Act, namely: -4 OWP no.1756/2018
c/w OWP nos.243/2018; 370/2018;
979/2018; 1623/2018; 2091/2017 (1) where the inquiry discloses, the Commission of violation of Human Rights or negligence in the prevention of violation of Human Rights by a public servant, it may recommend to the Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons;
(2) approach the High Court for such directions, orders or writs as the court may deem necessary;
(3) recommend to the Government or authority for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary;
(4) subject to the provisions of clause (5) provide a copy of the inquiry report to the petitioner or his representative; (5) the Commission shall send a copy of its inquiry report together with its recommendations to the Government or authority and the Government or authority shall, within a period of three 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;
(6) the Commission shall publish the inquiry report together with the comments of the Government or authority, if any and the action taken or proposed to be taken by the Government or authority on the recommendations of the Commission."
9. From bare perusal of Section 19 of the Act of 1997, it comes to fore that on completion of inquiry, the Commission may either recommend to the Government or the authority to initiate proceedings for prosecution or such other action for violation of Human Rights; or approach the High Court for directions, orders or writs; or recommend to the Government or the authority to grant interim relief to the victim or the members of his family; or provide copy of inquiry report to petitioner or his representative; or send copy of its inquiry report together with its recommendations to the Government or authority and the Government or the authority shall forward its comments on the report, including the action taken or proposed to be taken thereon to the Commission; or the Commission shall publish inquiry report together with comments of the Government or authority, if any and the action taken or proposed to be taken by the Government or the authority on the recommendations of the Commission.
10.We have noticed from the recitals of Section 19 of the Act of 1997 that the Commission, if it receives a petition, or say a complaint, 5 OWP no.1756/2018 c/w OWP nos.243/2018; 370/2018;
979/2018; 1623/2018; 2091/2017 disposes of the same, it can only make a Report (Inquiry Report) to the Government or the concerned authority.
11.It is made clear here that the Commission can, at the most, as is envisaged under and in terms of Subsection (5) of Section 19 of the Act of 1997, ask the Government or the concerned authority to "forward" its comments on its Inquiry Report/Recommendations, including "action taken or proposed to be taken", by the Government or the authority, on such Inquiry Report of the Commission.
12.When the Commission under the Act of 1997 receives comments, indicating action taken or proposed to be taken, from the Government or the authority, what next it can do. Can the Commission, upon receipt of comments from the Government or the authority, reflecting action taken or proposed to be taken, initiate any proceeding against the Government or authority? The answer is in negative.
13.It may not be incongruous to mention here that all those powers vested in the Commission, which it can/may use and utilize under the Act of 1997, terminate when it concludes the proceedings initiated on a petition/complaint and submits the Inquiry Report to the Government or the authority. Thereafter the Commission can only publish its Inquiry Report and action taken or proposed to be taken, by the Government or the authority as is coming forth from Subsection (6) of Section 19 of the Act of 1997.
14.When the case in hand is tested on the touchstone of provisions of Act of 1997, there is no gainsaying that the Commission has acted beyond its powers and jurisdiction. Thus, impugned orders are per se illegal and are so held.
15.It is pertinent to add here that a deep understanding of the provisions of the Act of 1997 would go to show that the Commission has got no power either to order for payment of compensation or to issue any other order. The power, in simple terms, is only to make appropriate recommendation to the Government. The said recommendation cannot 6 OWP no.1756/2018 c/w OWP nos.243/2018; 370/2018;
979/2018; 1623/2018; 2091/2017 be equated to an executable order at all. The Commission is neither a judicial authority nor a quasi-judicial authority to adjudicate upon the disputed facts. Therefore, the recommendations made by the Commission under the Act of 1997 cannot be termed as a verdict on resolving the disputed facts and the same are not binding on the parties before the Commission.
16.For the reasons discussed above, writ petition is allowed and impugned orders dated 20th July 2018 and 4th September 2018, passed by the J&K Human Rights Commission, are set-aside and the proceedings, if any, thereabout are quashed.
OWP no.243/201817.Quashment of proceedings initiated by the Commission on a complaint titled Ab. Majeed Bhat and others v. State, is sought for in writ petition on hand. Quashment of orders dated 22nd November 2017 and 16th June 2017 is also prayed. Besides, petitioners seek a direction, by writ of mandamus, to respondents not to take cognizance on the complaint as it does not fall within ambit of its jurisdiction.
18.A complaint, as is evident from the file, was filed by respondents before the Commission, in which they claimed that they were working in Mechanical Irrigation Department as casual labourers and sought justice on the basis of human rights violation. The Commission entertained the said complaint and issued notice upon petitioners to submit a report. A communication, bearing no.SHRC/36/2017 dated 12th May 2017, was addressed by the Commission to Station House Officer Police Station Rajbagh, Srinagar, to arrest Chief Engineer, Irrigation Department, Srinagar (petitioner no.2) and ensure his presence before the Commission on 5th June 2017. Petitioner no.2 submitted compliance report before the Commission, stating therein that funds had been released for payment of unpaid wages and requested to dismiss the complaint. In terms of communication/order dated 16th June 2017, the Chief Secretary, J&K, was informed that he 7 OWP no.1756/2018 c/w OWP nos.243/2018; 370/2018;
979/2018; 1623/2018; 2091/2017 and Secretary, Finance, had not filed their response, which should be filed by next date and petitioner no.2 would remain present on next date of hearing. The Commission, vide letter/order dated 22nd November 2017, intimated respondent no.1 that in the event wages were not released to the complainants, Secretary Finance and Secretary Irrigation would remain present in person before the Commission on next date of hearing.
19.Mr B. A. Dar, learned Sr. AAG, while dilating the case set up in writ petition on hand, has stated that the Commission is governed by the provisions of the Act of 1997 and that the Commission cannot enquire any complaint which relates to the matters not falling within its jurisdiction, but can forward it to a forum having jurisdiction to entertain such a complaint. He has also invited attention of this Court to Regulation 14 of J&K Human Rights Commission (Procedure) Regulations, 2011 (for short "Regulations of 2011"), which specifically provides that allegations in a complaint, which do not make out a case of human violation, should not be entertained by the Commission and that service matters, industrial and labour disputes as also civil disputes should not be entertained by the Commission. His next submission is that there is no provision in the Act of 1997 or Rules and Regulations made thereunder, to provide that despite filing of response, the officers could be directed to appear in person and that the procedural illegality committed by the Commission in entertaining the complaint may be set right. He has taken this Court to the order (Annexure P-7 to writ petition) to contend that in an identical matter, where the Commission had travelled beyond its jurisdiction, this Court directed the Commission not to take further steps with regard to subject matter involved in the said writ petition.
20.Taking into consideration the case set up by petitioners in writ petition on hand and submissions made by learned counsel for petitioners, it may be mentioned here that Section 2(c) of the Act of 1997 provides 8 OWP no.1756/2018 c/w OWP nos.243/2018; 370/2018;
979/2018; 1623/2018; 2091/2017 that "human rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. Functions of the Commission, as envisioned in Section 13, have already been discussed above, while deciding writ petition (OWP no.1756/2018) and need not be reproduced again here. The provisions of Section 13 provide that the Commission shall inquire violation of human rights or abetment thereof, or negligence in the prevention of such violation by a public servant, or intervene in any proceeding involving any allegation or violation of human rights pending before a court with the approval of such court, or visit under intimation to the Government any jail or any other institution under the control of the Government where persons are detained or lodged for purposes of treatment, reformation or protection to study the living conditions of the inmates and make recommendations thereof, or 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, or review the factors including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures, or undertake and promote research in the field of human rights, or spread human rights literacy among various sections of society and promote awareness of safeguards available for protection of these rights through publications, media, seminars and other available means.
21.The matters, pending before any other Commission constituted under any law for the time being in force, shall not be inquired by the Commission as is envisaged in Section 24 of the Act of 1997. The Commission, as is stipulated in Subsection (2) of Section 25, shall also not inquire any complaint that relates to a matter not falling within its jurisdiction. In the event, a complaint is filed before the Commission, which it cannot enquire, the same should be forwarded 9 OWP no.1756/2018 c/w OWP nos.243/2018; 370/2018;
979/2018; 1623/2018; 2091/2017 to a forum having jurisdiction to entertain the same. How to know which matters cannot be entertained by the Commission, is elaborated in the Regulations of 2011. Regulation 14 is pertinent to the present case and is, therefore, reproduced herein below:
"14.Complaints not entertainable- The Commission may dismiss in limini complaints of the following nature;
(i) The allegations in the complaint do not make out a case of human rights violations;
(ii) Trivial or frivolous and illegible complaints;
(iii) Vague anonymous/ unsigned, or pseudonymous
(iv) Civil disputes such as contractual obligations, matrimonial matters, property rights and other types of cases which are covered by civil/ criminal law;
(v) Pure and simple service matters;
(vi) Allegations not against a public servant;
(vii) Industrial/ labour disputes;
(viii) Matters sub-judice before any Court/ Tribunal/ Commission;
(ix) Matters outside the purview of the State Commission;
(x) Complaints barred by laws;
(xi) Matter fully covered by a judicial verdict/decision of the Commission."
22.From bare perusal of Regulation 14, it is evident that complaints relating to civil dispute, service matters, industrial/labour disputes, matters sub judice before any court/tribunal/commission, cannot be entertained by the Commission and if such a complaint is presented before it, the same is to be dismissed in limini.
23.On the subject of powers to be exercised by the Human Rights Commission, the Supreme Court in Paramjit Kaur v. State of Punjab, (1999) 2 SCC 131, has held thus:
"14. The concept of sui generis is applied quite often with reference to resolution of disputes in the context of international law. When the conventions formulated by compacting nations do not cover any area territorially or any subject topically, then the body to which such power to arbiter is entrusted acts sui generis, that is, on its own and not under any law.
17. The Commission is also a body sui juris created under an Act made by Parliament for examining and investigating the questions and complaints relating to violation of human rights, as also the negligence on the part of any public servant in preventing such violations."
24.In Doundial v. Union of India, AIR 2004 SC 1272 , the Supreme Court has held:
10 OWP no.1756/2018c/w OWP nos.243/2018; 370/2018;
979/2018; 1623/2018; 2091/2017 "14. We cannot endorse the view of the Commission. The Commission which is an 'unique expert body' is, no doubt, entrusted with a very important function of protecting the human rights, but, it is needless to point out that the Commission has no unlimited jurisdiction nor does it exercise plenary powers in derogation of the statutory limitations. The Commission, which is the creature of statute, is bound by its provisions. Its duties and functions are defined and circumscribed by the Act. Of course, as any other statutory functionary, it undoubtedly has incidental or ancillary powers to effectively exercise its jurisdiction in respect of the powers confided to it but the Commission should necessarily act within the parameters prescribed by the Act creating it and the confines of jurisdiction vested in it by the Act. The Commission is one of the fora which can redress the grievances arising out of the violations of human rights. Even if it is not in a position to take up the enquiry and to afford redressal on account of certain statutory fetters or handicaps, the aggrieved persons are not without other remedies. The assumption underlying the observation in the concluding passage extracted above proceeds on an incorrect premise that the person wronged by violation of human rights would be left without remedy if the Commission does not take up the matter."
25.Again, the Supreme Court in G. Manikyama and others v. Roudri Cooperative Housing Society Limited and others, (2014) 15 SCC 197 , has said:
"41. There is nothing on record before us to establish that the land in question was duly taken possession by the Government under the provisions of the Act. Until possession is duly taken as explained above, property still remains private property notwithstanding the determination that such property is ' land in excess of the ceiling limit' under the Act. The persons in possession of such property, whatever be the nature of their possession - whether they are encroachers or persons such as the first respondent Society - cannot be evicted by force. All this requires a thorough examination of the respective rights of the various parties and the authority of the State to deal with the property in question.
42. The Human Rights Commission, in our view, would not be competent forum for the examination of the above - mentioned issues. Both the first respondent Society as well as the encroachers, in our view, wrongly invoked the jurisdiction of the Human Rights Commission instead of pursuing the appropriate remedies available to them in law, and the Human Rights Commission was too willing to exercise authority without any jurisdiction. We are also of the opinion that the High Court resorted to more of a mediation activity than the determination of the legal issues involved in the case.
43. In our opinion, the Human Rights Commission does not have any jurisdiction to deal with the disputed questions of title and possession of the property."
26.In the above backdrop, the Commission, regardless of aforesaid mandate, has not only entertained the complaint in question but took 11 OWP no.1756/2018 c/w OWP nos.243/2018; 370/2018;
979/2018; 1623/2018; 2091/2017 cognizance thereupon inasmuch as passed impugned orders thereon. The said action of the Commission runs contrary to the settled proposition of law that when a statute requires a thing to be done in a particular manner, it is to be done only in that manner alone. Reference in this regard can also be made to State of MP v. Centre for Environment 2020 SCC Online 687 and Competent Authority v. Barangore Jute Factory and others, (2005) 13 SCC 477.
27.The Commission in the instant case had palpably without any jurisdiction entertained the complaint relating to recovery of arrears of wages, which is not a human right but a service matter/dispute covered by civil law, and in the process, passed impugned orders in breach and violation of aforesaid provisions of the Act of 1997 and Regulations made thereunder.
28.A Division Bench of this Court in OWP No. 2017/2019 titled State Jammu and Kashmir and others v. J&K State Human Rights Commission and others, decided on 2nd July 2019, has emphasized that the Commission is a statutory body, which is a creation of statute and has to work within the four corners of law and exercise its jurisdiction within the limits prescribed under the Act of 1997 and the Regulations framed thereunder. The observation came to be made after it was noticed that the Commission had taken cognizance of a complaint relating to a service dispute. The Commission specifically under the Regulations was required to dismiss it in limini being a complaint involving pure and simple service matters. The said dictum was again followed and reiterated by a Division Bench of this Court in OWP no.2608/2018 titled State of J&K v. J&K State Human Rights Commission and others, decided on 28th September 2020.
29.As is discernible from the above, the Commission has entertained the complaint, taken cognizance thereon and adjudicated the same qua the issues other than those covered under the Act, irrespective of the fact that it lacks jurisdiction and competence. The Commission thus 12 OWP no.1756/2018 c/w OWP nos.243/2018; 370/2018;
979/2018; 1623/2018; 2091/2017 in the process admittedly encroached upon the power and jurisdiction of other statutory, quasi-judicial and judicial authorities. The said act of the Commission is likely to create an anarchy, which by no sense of imagination can be said to be tenable in law.
30.In view of the settled legal position and for all that has been discussed herein above, we find merit in the petition. The same is allowed. The impugned orders, or for that matter any other order, passed by the Commission, are set-aside and as a sequel thereof, the complaint titled Ab. Majeed Bhat and others v. State, is dismissed.
OWP no.370/201831.Challenge in this writ petition is thrown to Order dated 23 rd February 2018, passed by the Commission, with a direction to respondents to close the complaint in terms of the report already submitted by petitioner.
32.In the case in hand a complaint had been filed by Gh. Rasool Sofi son of Mohammad Ramzan Sofi resident of Samal Payeen, Anantnag, which was disposed of vide judgement dated 21 st June 2007, recommending payment of ex gratia relief. The matter appears to have been placed before the 28th Empowered Committee on 6th October 2017 for deliberation and it observed that recommendations of the Commission could not be accepted. The decision was conveyed to the Commission.
33.The instant case also falls within the provisions of Section 19 of the Act of 1997 as has been discussed while deciding OWP no.1756/2018 herein before and the same need not be reiterated here again. The Commission, after conclusion of the inquiry and submission of recommendation to the Government or authority, has no power or authority to pass any order in contravention of the provisions of the Act of 1997. At the most, the Commission can publish its recommendation and action taken or proposed to be taken by the Government. In that view of the matter, the Commission has exercised 13 OWP no.1756/2018 c/w OWP nos.243/2018; 370/2018;
979/2018; 1623/2018; 2091/2017 its powers beyond its jurisdiction and, therefore, impugned order is liable to be set-aside.
34.For the reasons discussed above, writ petition is allowed and impugned order dated 23rd February 2018, passed by the J&K Human Rights Commission, is set-aside and the proceedings, if any, initiated by it are quashed.
OWP no.979/201835.Impugned in this writ petition is order dated 22nd May 2018, passed by the Commission in the subject "Suo-Motor Cognizance regarding seven abandoned children in Psychiatric Hospital await their return home" as well as proceedings initiated thereon.
36.In the present case, the Commission took Suo Moto Cognizance regarding seven abandoned children. In terms of order dated 9th March 2018, the Commission had asked Law Secretary, J&K, to explain as to whether Notification under Subsection 3 of Section 1 of the Mental Health Act, 1987, had been issued or not, and if so, Notification be furnished to the Commission. It is averred that the copy of the Act was provided to the Commission, but Commission sought presence of petitioner before the Commission. On 22nd May 2018, Deputy Secretary, Law Department, is said to have appeared before the Commission, but he was not extended hearing and instead bailable warrant was issued against petitioner with a direction to SHO Police Station Shaheed Gunj, Srinagar, to execute the warrant and file compliance. It is also contended that the Commission was requested to recall Order dated 22nd May 2018 and personal appearance of petitioner be dispensed with and that the Mental Health Act, 1987, was repealed by the Act of 2017 and, therefore, no Notification was required to be issued under Subsection 3 of Section 1 of the Mental Health Act, 1987. It is also stated that it was brought to the notice of the Commission that the Mental Health Act, 2017, governed the 14 OWP no.1756/2018 c/w OWP nos.243/2018; 370/2018;
979/2018; 1623/2018; 2091/2017 subject matter inasmuch as the said Act was applicable to whole of the India, including J&K.
37.Mr B. A. Dar, learned Sr. AAG, has stated, and rightly so, that Regulation 14 of the Regulations of 2011 provides that the Commission may dismiss in limini complaints of different nature, which includes those which are trivial or frivolous and illegible complaints. According to him, the complaint of which the Commission has taken cognizance falls within Regulation 14 (ii). He further contends that the Mental Health Act, 1987, on the basis whereof the Commission took Suo Moto Cognizance, was not in vogue as the same has already been repealed in terms of the Mental Healthcare Act, 2017, which stands extended to whole of the India and therefore, there was no occasion for the Commission to direct petitioner to explain as to whether Notification under the Mental Health Act, 1987, has been issued. It is also stated that impugned order is against Section 18 and 19 of the Act of 1997.
38.There is substance in the submissions of learned counsel for petitioner. Once the comments have been submitted by the petitioner before the Commission, it cannot act beyond its jurisdiction and pass orders, which it cannot. The functions, powers and limitations of the Commission have been comprehensively discussed herein above and need no reiteration.
39.Having an overall view of the case in hand, writ petition succeeds and is accordingly allowed. Impugned order dated 22 nd May 2018, or for that matter any other order, passed by the Commission, is/are set-aside and as a consequence of which, the proceedings initiated by the Commission under "Suo Moto Cognizance regarding seven abandoned children in Psychiatric Hospital await return home", are quashed.
15 OWP no.1756/2018c/w OWP nos.243/2018; 370/2018;
979/2018; 1623/2018; 2091/2017 OWP no.1623/2018
40.Petitioners pray for quashment of the decision/judgement dated 3 rd June 2014, passed by the Commission, on the ground that the Commission has travelled beyond its jurisdiction and has fallen in error while entertaining the complaint.
41.On a complaint, filed respondent no.3, impugned judgement has been passed by the Commission, directing petitioners to pay compensation of Rs.3.00 Lakhs to respondent no.3, with the right to recover the same from the contractors.
42.Taking into consideration the case set up and submissions made by learned counsel for petitioners, it may be mentioned here that the Commission, as is provided under Subsection (2) of Section 25, shall not inquire into any complaint that relates to a matter not falling within its jurisdiction. In the event, a complaint is filed before the Commission, which the Commission cannot enquire, the same should be forwarded to a forum having jurisdiction to entertain the same. Regulation 14 of the Regulations of 2011 in clear cut terms provides that the Commission may dismiss in limini the complaints if the allegations therein do not make out a case of human rights violation, or are trivial or frivolous and illegible, or are vague, or contain civil disputes, or are of pure and simple service matter, or do not contain allegations against public servant, or relate to industrial/labour disputes. In the instant case, perusal of impugned judgement itself reveals that it was due to the negligence of contractors, that son of respondent no.3 died; therefore, there was no allegation against public servant to demonstrate their negligence as is required under the Act of 1997 and Regulations made thereunder. In such a situation, the complaint could not have been entertained by the Commission and judgement impugned could not have been passed by it. Having said that impugned judgement is liable to be set-aside and complaint dismissed.
16 OWP no.1756/2018c/w OWP nos.243/2018; 370/2018;
979/2018; 1623/2018; 2091/2017
43.For the reasons discussed above, writ petition is allowed. Impugned judgement/decision dated 3rd June 2014, passed by the Commission is set-aside and the complaint filed by respondent no.3 is dismissed.
OWP no.2091/201744.In the present case, the Commission has intriguingly entertained a complaint, which on the face of it relates to service matter, and passed orders on it. So, the matter need not be reiterated again here inasmuch as on the subject we have already discussed in detail herein above. The Commission in view of Regulation 14 lacks jurisdiction to entertain such matters.
45.Learned counsel for petitioners has stated that respondent has already approached this Court with a writ petition, being SWP no.159/2016, in which he had projected his case on the basis of some representation claimed to have been filed by him seeking promotion on regular basis and that the said writ petition was disposed of vide order dated 10 th February 2016 (Annexure J to writ petition) with a direction to the department to accord consideration to his representation.
46.The Commission, in the present case, has travelled beyond its jurisdiction and, therefore, impugned orders, proceedings and the complaint are liable to be set-aside/quashed.
47.For the reasons discussed above, writ petition is allowed. The proceedings initiated by the Commission on the complaint of respondent are quashed. Order dated 7th March 2017, passed by the Commission is set-aside and the complaint filed by respondent before the Commission is dismissed.
(Vinod Chatterji Koul) (Pankaj Mithal)
Judge Chief Justice
Srinagar
02.04.2021
"Manzoor"
Whether approved for reporting? Yes/No
MANZOOR UL HASSAN
DAR
2021.04.05 12:53