Delhi High Court
Era Rani Shubh And Anr vs State Bank Of India And Anr on 10 September, 2018
Author: Sangita Dhingra Sehgal
Bench: G.S.Sistani, Sangita Dhingra Sehgal
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgement Reserved on: 2nd August, 2018
Judgement pronounced on:10th September,2018
+ LPA 657/2016
ERA RANI SHUBH & ANR ....Appellants
Through Mr. Shanti Prakash, Advocates
versus
STATE BANK OF INDIA & ANR ...Respondnets
Through Mr. Dayan Krishnan, Sr. Adv.
with Mr. Sanjay Kapur, Mr. Rajiv
Kapur and Ms. Megha Karnwal
for R-1/SBI.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J
1. Challenge in this appeal filed under Clause X of the Letters Patent
Act is to the order dated 19.09.2016 passed by the learned Single
Judge whereby the writ petition filed by the respondent No.1/State
Bank of India against the order dated 09.02.2016 issued by The
National Commission for Scheduled Caste (hereinafter referred as
„NCSC‟) to reconsider and re-examine the issue of penalty
imposed upon the appellant No. 2/ Sh. R.K. Shubh, was allowed.
2. The brief facts leading to the filing of the present appeal are that
one R.K. Shubh/ appellant no. 2 was posted as a Special
LPA 657/2016 Page 1 of 17
Assistant at State Bank of India, Faridabad Main Branch on
01.03.2007, which dealt with selling of non-judicial stamps and
issuance of Government receipts in the cash department. The
respondent was transferred to CAC Faridabad branch in the same
building on 23.03.2013. On account of various complaints
received by the respondent bank with regard to irregular
practices in the cash department in the Faridabad Main Branch,
the investigation team conducted a surprise cash verification of
the said branch at 03:30pm on 25.03.2013 and submitted its
report thereby holding that:
"Later on one Shri Raj Kumar Shubh who was
earlier transferred to CAC Faridabad at the 1st
floor of the same building, entered the room a
number of times trying apparently to help the staff
to tally the cash.....so according to us at 3:30PM
there was a cash excess of Rs. 1,30,207/- in the
counter, where cash was being received by Smt.
Nisha."
3. Thereafter, a notice dated 16.05.2013 was served upon the
appellant No. 2, but being dissatisfied by the explanation given by
him, charge sheet dated 31.08.2013 was issued and disciplinary
proceedings were initiated against him. Aggrieved by the action
sought to be initiated against the appellant No. 2/husband,
Appellant No. 1/ wife of R.K. Shubh lodged a complaint with the
Faridabad Police against the officers of the bank. The police after
taking the statement of the officers of the bank prepared the
LPA 657/2016 Page 2 of 17
closure report by holding that the issue concerned was an internal
departmental matter of the bank. On 23.06.2014, the appellant
no. 2 was transferred from CAC Branch, Faridabad to Gonda
Branch, Shahadra but the appellant No. 2 after joining his duties on
28.08.2014 reported for duty only on few days and remained on
medical leave for the remaining period. The appellant No. 1 then
went on to file another complaint before NCSC against the
chairman of the appellant Bank by taking a plea of dragging her
husband in a false case and also being harassed by transfer from
Faridabad to Delhi. On 05.11.2014, the respondent bank received a
notice from NCSC to which a detailed reply was filed by the said
bank. On 02.10.2015, a penalty was imposed against the appellant
No. 2 under the disciplinary proceeding, that is,"bringing down to
lower stage in the scale of pay upto one stage for one year." The
appellant No. 2 filed a departmental appeal against the penalty
imposed but the same was rejected by the Appellant Authority on
05.12.2015. On 09.02.2016, the NCSC passed an order directing
the appellant bank to re-examine the issue and reconsider the
penalty so imposed. A writ petition was preferred by the appellant
bank on 04.05.2016 challenging the observations and
recommendations given by the NCSC. On 19.09.2016, the writ
petition filed by the appellant bank was allowed by the learned
Single Judge. Hence, the present appeal has been filed to set aside
the said order.
4. Mr. Shanti Prakash, learned counsel for the appellants
strenuously contended that the Single Judge committed error in
LPA 657/2016 Page 3 of 17
allowing the writ petition filed by the appellant bank vide its
order dated 19.09.2016 and that such findings were based more
on hypothetical assumption of vital and necessary facts, based
on mere surmises; that the writ petition was allowed without
providing opportunity to the appellants to file reply to the writ
petition; that the NCSC has exercised its power under Article
338 of the constitution of India under which it can entertain the
complaint dated 07.07.2014 filed by the appellant No. 2 to
evaluate the deprivation and safeguard the rights of Scheduled
castes; that the Regional Manager, State Bank of India is not a
competent authority to file the writ petition as the complaint was
filed against the Chairman and Chief General Manager of State
Bank of India. He further relied upon Rule 7.2(a)(vii) of the
Gazette notification dated 25.03.2009 in as much as where the
property, service/employment of Scheduled Castes and other
related matters are under immediate threat, prompt attention of
the Commission is required and that the concerned authority will
be prohibited to take any action till the completion of the
enquiry in the matter by the commission. Hence, the order dated
14.09.2016 is liable to be set aside on above mentioned grounds.
In order to substantiate his case, the counsel for the appellants
have placed reliance on the following cases All India Indian
Overseas Bank SC and ST Employees Welfare Association and
others v. Union of India & Ors. reported in (1996) 6 SCC 606,
A.V. Papayya Sastry & Ors. v. Govt. Of A.P. & Ors. reported in
LPA 657/2016 Page 4 of 17
(2007) 4 SCC 221, S.P. Chengalvaraya Naidu(Dead) by LRs v.
Jagannath (Dead) by LRs & Ors. reported in (1994) 1 SCC 1.
5. Mr. Dayan Krishnan, learned senior counsel for the respondent
No. 1 contends that the order dated 09.02.2016 passed by the
Commission is contrary to the facts on record and the
Commission has acted beyond its jurisdiction enshrined
under Article 338 of the Constitution of India; that the
Commission has jurisdiction to only make an enquiry and not
investigate into the specific complaints with respect to the
departmental enquiry or the order of penalty passed by the
Disciplinary Authority; that the Commission has no jurisdiction
over the services matter of any institution or Bank; that the
limited jurisdiction of the Commission under Article 338 of the
Constitution of India is to make recommendations but cannot
issue any directions to any authority; that the appellants have
failed to establish as to how they have been a victim of
discrimination and harassment being a Scheduled Caste
employee in order to invoke the jurisdiction of the Commission,
since the question of caste-based harassment has not been dealt
with by the commission in its order, thus the recommendation
made by the Commission is beyond its jurisdiction and has been
rightly set aside by the learned Single Judge vide his order dated
19.09.2016. In support of the contentions raised, the learned ounsel
for the respondents placed reliance on Union of India v. National
Commission for Schedule Castes reported in 2014 SCC Online
LPA 657/2016 Page 5 of 17
Del 3324, Karnataka Antibiotics & Anr. v. National Commission
for SC & ST reported in ILR 2008 KAR 3305, Prof. Ramesh
Chandra v. University of Delhi & Anr. reported in ILR 2007 II
Delhi 593, All India Indian Overseas Bank SC and ST
Employees v. UOI & Anr. reported in (1996) 6 SCC 368,
Municipal Corporation of Delhi v. Lal Chand & Ors. vide Order
dated 17.09.2013 in WP(C) No. 5468/2011, Council for
Advancement v. National Commission vide Order dated
12.01.2015 in WP(C) No. 3929/2014 and State Bank of India v.
National Commission vide order dated 19.09.2016 in WP(C) No.
6579/2014.
6. We have heard the learned Counsels for the parties and
considered their rival submissions and perused the relevant
material on record.
7. The prime question which arises in the instant case is whether
the NCSC was acting within its jurisdiction under Article 338 of
the constitution to entertain the complaint of the appellants and
issuing directions to reconsider and re-examine the penalty
imposed on the respondent no. 2 by the respondent bank. In this
context, it is relevant to produce Article 338 of the Constitution
of India which elucidates the power of the commission.
Article 338 of the Constitution, reads as under:
338.(1) There shall be a Commission for the
Scheduled Castes and Scheduled Tribes to be
known as the National Commission for the
Scheduled Castes and Scheduled Tribes.
LPA 657/2016 Page 6 of 17
(2) Subject to the provisions of any law made in
this behalf by Parliament, the Commission shall
consist of a Chairperson, Vice-Chairperson and
five other Members and the conditions of service
and tenure of office of the Chairperson, Vice-
Chairperson and other Members so appointed
shall be such as the President may by rule
determine.
(3) The Chairperson, Vice-Chairperson and other
Members of the Commission shall be appointed by
the President by warrant under his hand and seal.
(4) The Commission shall have the power to
regulate its own procedure.
(5) It shall be the duty of the
Commission-
(a) to investigate and monitor all matters relating
the safeguards provided for the Scheduled Castes
and Scheduled Tribes 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 and Scheduled Tribes;
(c) to participate and advise on the planning
process of socio-economic development of the
Scheduled Castes and Scheduled Tribes and to
evaluate the progress of their development under
the Union and any State;
LPA 657/2016 Page 7 of 17
(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 Scheduled Tribes; and
(f) to discharge such other functions in relation to
the protection, welfare and development and
advancement of the Scheduled Castes and
Scheduled Tribes as the President may, subject to
the provisions of any law made by Parliament, by
rule specify.
(6) The President shall cause all such reports to be
laid before each House of Parliament along with a
memorandum explaining the action taken or
proposed to be taken on the recommendations
relating to the Union and the reasons for the non-
acceptance, if any, of any of such
recommendations.
(7) Where any such report, or any part thereof,
relates to any matter with which any State
Government is concerned, a copy of such report
shall be forwarded to the Governor of the State
who shall cause it to be laid before the Legislature
of the State along with a memorandum explaining
the action taken or proposed to be taken on the
recommendations relating to the State and the
reasons for the non-acceptance, if any, of any of
such recommendations.
LPA 657/2016 Page 8 of 17
(8) The Commission shall, while investigating any
matter referred to in sub-clause (a) or inquiring
into any complaint referred to in sub-clause (b) of
clause (5), have all the powers of a civil court
trying a suit and in particular in respect of the
following matters, namely:-
(a) summoning and enforcing the attendance of
any person from any part of India and examining
him on oath;
(b) requiring the discovery and production of any
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 of
witnesses and documents;
(f) any other matter which the President may, by
rule, determine.
(9) The Union and every State Government shall
consult the Commission on all major policy
matters affecting Scheduled Castes and Scheduled
Tribes.
(10) In this Article the reference to the Scheduled
Castes and Scheduled Tribes shall be construed as
including the reference to such other backward
classes as the President may on receipt of the
report of a Commission appointed under clause
(1) of article 301 of the Constitution by order
specify and also to the Anglo-Indian community."
8. Reading of the above provision it is contemplated, the power under
Article 338 (5) and 338 (8) shall be exercised only if the complaint/
LPA 657/2016 Page 9 of 17
representation refers to deprivation of rights and violation of
safeguards of Scheduled Castes in terms of the instructions issued
by the Central Government, PSU, State Government or Bank. The
main guidelines which is to be followed in these matters are the
rules issued by the Ministry of Social Justice and Empowerment,
gazetted on 15.06.2009. As per Rule 7.4.1 of the gazette
notification dated 15.06.2009, the following aspects must be kept
in mind while filing a complaint before the commission/ NCSC.
Rule 7.4.1:-
"7.4.1 The following aspect may be kept in mind
while filing complaints before the
Commission-
(a)The complaint should be directly addressed to the
Chairman/Vice-Chairman/Secretary,National
Commission for Scheduled Castes, New Delhi or the
heads of its State Offices.
(b) The complainants should disclose his full identity
and give his full address and should sign the
representation.
(c) Complaints should be legibly written or typed
and, where necessary, supported by authenticated
documents.
(d) Complaints should clearly disclose the violation
of Reservation policy, DOPT OMs, Government of
India Orders, State Government Orders, PSUs and
Autonomous Bodies orders or any other violation
Rules of Reservation.
(e) No action will be taken on matters, which are
subjudice. Hence subjudice matter need not be
referred to the Commission as complaint(s).
LPA 657/2016 Page 10 of 17
(f) Cases pending in courts or cases in which a court
has already given its final verdict may not be taken
up afresh with the Commission.
(g) The cases of Administrative nature like
transfer/posting/grading of ACRs will not be taken
up by the Commission unless there is caste based
harassment of petitioner.
(h) No action will be taken on the matters where
there is no mention of violation of Reservation
policy, DOPT OMs, Government of India Orders,
State Government Orders, PSUs and Autonomous
Bodies orders or any other violation of Rules of
Reservation. Hence the matters where there is no
mention of violation of above Rules need not be
referred to the Commission as complaints."
9. In the present case in hand, the complaint was filed by the
appellant No. 1 before the NCSC on 07.07.2014 which reads as
under:-
"To,
National Commission for Scheduled Cstes
Chairman
5th Floor, Lok Narayan Bhavan,
Khan Market, New Delhi 110003
Sub: Complaint against Chairman State Bank of
India, Mumbai C.G.M. State Bank of India, New
Delhi for atrocity on Dalit employees R.K. Shubh.
R/Sir,
My husband Sh. R.K. Shubh is a established Union
leader of SBI staff Association for the last 30 years.
But in March, 2013 he lost the Election.
But thereafter:-
1. My husband was dragged in a false and
fabricated case in which Bank has no proof nor
they had not given any prove to support their
LPA 657/2016 Page 11 of 17
changes to my husband R.K. Shubh inspite of his
repeated request to give to prove his innocence.
2. My husband R.K. Shubh facing the humiliation at
hands of State Bank of India (Vigilance) for the last
more than one year.
3. Letter written to Higher authority like Chairman,
CGM and others but request made to them (falling
on deaf ears) with no answer received on our letter
from them, Higher Authority.
4. Sir, we won the false and fabricated case against
Vigilance by receiving a report from Faridabad
Police with whom we made a request to enquire
against the Vigilance Deptt. Charges Faridabad
Police given us a clean chit on charges levelled on
my husband.
5. It was shocking news for us of my husband
transfer to Delhi from Faridabad without giving us
any reason. Which was managed by the main culprit
Sh. Mahesh Pandey DGM Vigilance New Delhi as
he is the man who managed all the wrong story to
harm my husband R.K. Shubh.
6. The Higher Management has not taken any action
against Sh. Mahesh Pandey who is running
extortion Racket in the name of Vigilance Deptt. for
which already written and signed complaint was
made to Chairman.
7. My husband already makes a request to Regional
Manager Region-V Sh. Jha A.G.M. why he is
transferring him to Delhi from Faridabad on
24.06.2014 and 30.06.2014 to give the reason of
transferring but is also playing in hands of
Vigilance DGM because he is junior to him (DGM)
have not given any reply so far.
In the end I request your goofself to look in
this matter and take
A senior view of all this incident I am attaching all
serious letter written to Chairman SBI Mumbai and
LPA 657/2016 Page 12 of 17
so far no letter/any action taken against the
culprits."
A perusal of the complaint shows that no caste-based allegations
have been made by the Appellant No. 1 and nor does the complaint
disclose the existence of any "violation of Reservation policy" by
the respondent bank as per the abovementioned rules. The
grievances made in the said complaint was with regard to the
penalty imposed on the appellant No. 2 by the respondent bank and
subsequent transfer of the appellant No. 2 from the Main Bank
Branch, Faridabad to Gonda Branch, Shahadra. Even otherwise, no
evidence was adduced by the appellants to prove that there was a
violation of the safeguards provided for the protection of the
Scheduled Castes and Scheduled Tribe under the Constitution of
India. According to the respondent bank the penalty imposed on
the appellant No. 2 is based on the outcome of an enquiry duly
conducted by the petitioner Bank following the principles of
natural justice. Despite the above facts, the Commission has
directed the petitioner Bank to reconsider the penalty so imposed
on the appellant No. 2.
10. In the case of The National Seed Corporation Ltd. v The National
Commission for St & SC & Anr. reported in 2013 SCC OnLine
Del 222934, it was held that :-
34. The Constitutional scheme of Article 338 clearly
indicates that the Special Officer was vested with the
power primarily to examine rights and safeguards of
Scheduled Castes and Scheduled Tribes and to
submit a report to the President with respect to the
LPA 657/2016 Page 13 of 17
effective implementation of those safeguards and
other measures for the protection, welfare and
socio-economic development of the Scheduled
Castes and Scheduled Tribes.
35. Though the Commission post the
th
65 Amendment has been vested with the power to
examine instances and individual complaints but
that investigation and enquiry is for the purposes of
furtherance of the objective of the setting up of the
Commission, i.e., for the purposes of investigation
and monitoring all matters relating to the
safeguards and for submission of a report to the
President.
36. The powers vested with the Commission of
enquiry and submission of report cannot be
extended to adjudication of disputes between an
individual and a corporation or a statutory
authority. The powers conferred do not contemplate
that the Commission can examine the matter like a
Civil Court and adjudicate the dispute and
pronounce a judgment either interim or final.
37. The Commission is not a Tribunal or a forum
discharging the functions of a judicial character or
a Court. Article 338 does not entrust the said
Commission with the powers to take up the role of a
Court or an adjudicatory tribunal and to determine
the rights inter-se the parties.
38. No doubt, under clause 8 of Article 338, the
Commission has been given all the powers of the
Civil Court trying a suit but the said powers are to
be exercised while investigating any matter referred
to in sub - clause „a‟ or enquiry into any complaint
referred to under sub-clause „b‟ of Clause 5.
39. The powers given to the Commission are
procedural powers of a Civil Court for the purposes
of investigating and enquiring into these matters and
LPA 657/2016 Page 14 of 17
are limited for that purposes. The power conferred
under Clause 8 of Article 338 do not confer the
powers of a Civil Court of granting injunctions of
temporary or permanent nature and for adjudicating
and deciding disputes between parties like a court.
Further in the case of Indian Institute of Technology v. National
Commission for Scheduled Castes and Scheduled Tribes reported in 111
(2004) DLT 155 this Court has laid down as under:
"15. It will thus be seen from the aforesaid that it is
only in specific matters that the power of civil court
has been conferred on Respondent No. 1
Commission. This aspect has also to be examined
keeping in mind the duties of the Commission set out
in Article 338(5) which has to investigate and
monitor all matters relating to safeguarding the
rights of the scheduled caste and scheduled tribes
and to enquire into specific complaint with respect
to deprivation of the rights and safeguarding. The
jurisdiction is advisory in nature but it is only for
the purpose of investigating of the complaint that the
powers of civil court have been conferred in respect
of certain matters."
The Division Bench of this Court in Deepshikah Jiwan
Pandit v. NCERT reported in 2004 (73) DRJ 442 (DB) held as under:
"8. Having examined the matter in the light of the
aforenoted advise of the Commission, we are of the
view that answer to the question has to be in the
negative. From a reading of Clauses (5) & (8) and
in particular sub-clause (b) of Clause (5) of Article
338 of the Constitution, introduced by the
Constitution (Sixty fifth Amendment) Act, 1990, it
appears that though the Commission has the power
LPA 657/2016 Page 15 of 17
to enquire into a specific complaint and make its
report thereon but its reports are recommendatory
in nature. We leave it at that because learned
counsel for the Petitioner has not seriously
contended that the "advice" of the Commission was
mandatory and binding on the authorities below. We
find from the orders of the lower authorities that
they were fully conscious of the advice of the
commission. Therefore, we do not agree with
learned counsel for the Petitioner that what was
advised by the Commission has been ignored by the
Tribunal or the Tribunal or the NCERT."
11. No doubt, under clause 8 of Article 338, the Commission has been
given all the powers of the Civil Court trying a suit but the said
powers are to be exercised while investigating any matter referred
to in sub-clause (a) or enquiry into any complaint referred to under
sub-clause (b) of Clause 5. The powers given to the Commission
are procedural powers of a Civil Court for the purposes of
investigating and enquiring into these matters and are limited for
that purposes.
12. In view of the discussion above, it must be held that the
Commission had lacked inherent jurisdiction to entertain the
complaint filed by the appellant no. 1 on the ground that there are
no allegations in the complaint relatable to cases which can be
decided by the Commission. The issue with regard to the legality
of the disciplinary proceedings initiated against the appellant no.2,
which culminated in penalty needs to be decided by a judicial
forum. Even otherwise when the earlier order / recommendation
dated 09.02.2016 has been acted upon, there was no occasion for
LPA 657/2016 Page 16 of 17
the Commission to reiterate the Bank to reconsider the whole
issue.
13. Accordingly, we find no infirmity in the order dated 19.09.2016
passed by the learned Single Judge. Keeping in mind the
aforesaid facts, this court finds that there is no merit in the
appeal. The appeal, therefore, stands dismissed.
14. Ordered accordingly.
SANGITA DHINGRA SEHGAL, J.
G.S.SISTANI, J.
SEPTEMBER 10, 2018 //gr LPA 657/2016 Page 17 of 17