Uttarakhand High Court
Pankaj Kumar vs State Of Uttarakhand And Others on 17 September, 2019
Author: Alok Kumar Verma
Bench: Ramesh Ranganathan, Alok Kumar Verma
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (PIL) No. 129 of 2019
Pankaj Kumar ...Petitioner
Vs.
State of Uttarakhand and others ...Respondents
Mr. M.C. Pant and Mr. C.K. Sharma, learned counsel for the petitioner.
Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand-respondents
1 and 5.
Mr. Lalit Sharma, learned Standing Counsel for the Union of India-respondents 2 and
3.
Mr. Rakesh Thapliyal, learned Special Counsel for the Special Investigating Team.
Mr. A.S. Rawat, learned Senior Counsel assisted by Ms. Charanjeet Kaur, learned
counsel for the tenth respondent.
Judgment Reserved : 11.09.2019
Judgment Delivered : 17.09.2019
Chronological list of cases referred:
1. (1996) 6 SCC 606
2. (2010) 4 SCC 368
Coram : Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Kumar Verma, J.
Ramesh Ranganathan, C.J.
In this Writ Petition, filed in public interest, the petitioner seeks a writ of certiorari to quash the order dated 02.07.2019; and a writ of prohibition directing the National Commission for Scheduled Tribes not to proceed further in relation to the representation, filed by the tenth respondent, dated 02.07.2019.
2. Facts, to the limited extent necessary, are that W.P. (PIL) No. 228 of 2018 was filed seeking a writ of mandamus to appoint the CBI, or to initiate a judicial inquiry, for taking appropriate action in accordance with law; and to also monitor and supervise the entire investigation pursuant to the inquiry report dated 27.03.2017, and the letters dated 28.12.2017 and 18.07.2016, so that the culprits may be punished in accordance with law. In the said Writ Petition, the petitioner had alleged that a huge scam, involving various education institutions in the State of Uttarakhand, had resulted in several hundred crores of rupees of public funds, meant to be paid as scholarships to scheduled caste and scheduled tribe students, was swindled by these institutions; they, along 2 with brokers and touts, had siphoned-off several hundred crores of rupees earmarked as scholarship for these socially and educationally backward class students belonging to the Scheduled Castes and the Scheduled Tribes category; and the entire issue was now sought to be hushed up by senior bureaucrats and ministers in the State Government.
3. In its order in W.P. (PIL) No.228 of 2018 dated 14.12.2018, a Division Bench of this Court had noted the contents of the report of the Additional Secretary, Social Welfare Department dated 27.03.2017 which disclosed that even on a random sampling, for the years 2011-2012 to 2014-2015, of the scholarship amounts paid to the Scheduled Caste students, in the two districts of Dehradun and Haridwar, serious financial irregularities had come to light; and it was necessary for a detailed inquiry to be caused, on this extremely serious issue, by a High Power Committee.
4. The attention of the Division Bench was also drawn to the noting of the Additional Secretary, Social Welfare Department dated 10.08.2017 recommending that investigation be entrusted to the Central Bureau of Investigation; and to certain other notings in the Government files to contend that the Additional Secretary, who had submitted the report dated 27.03.2017, was now sought to be removed from the inquiry and, in his place, certain other officers were brought in only to hush-up the entire matter. Reliance was placed, on behalf of the petitioner, on certain compromise-deeds whereby some of the educational institutes had agreed to pay the broker 40% of the amount they received from the Government towards scholarship for students belonging to the Scheduled Castes and the Scheduled Tribes.
5. While taking note of the fact that the Chief Minister had, in April 2017, directed an inquiry to be caused by the SIT, and for it to be completed within three months, the Division Bench had observed that the very fact that no investigation had commenced thereafter till FIR No. 0496 was registered on 01.12.2018, i.e. after more than 20 months, was a 3 matter of concern. The Chief Secretary, Government of Uttarakhand was requested to examine the issue, and to submit a report to this Court, after causing a preliminary inquiry into the allegations made in the report of the Additional Secretary, Social Welfare Department dated 27.03.2017 and his subsequent noting dated 10.08.2017, within three weeks indicating the time-frame within which the investigation would be caused and completed by the SIT headed by the seventh respondent; whether the SIT was capable of investigating a scam spread over five States; and whether the matter should, instead, be handed over to the Central Bureau of Investigation to cause investigation, into these allegations, with utmost expedition.
6. In its order in W.P. (PIL) No.228 of 2018 dated 04.01.2019, the Division Bench took note of the contents of the affidavit of the Chief Secretary to the Government of Uttarakhand that, from out of the conclusion drawn on seven points in the Inquiry Officer's report dated 27.03.2017, the Additional Chief Secretary had held that five conclusions could not be proved; in respect of conclusion No. 3, pertaining to admission of students through agents/middlemen and who had got signed the withdrawal forms/cheques from students, the said conclusion/charge could only be verified after investigation by the SIT; if conclusion No. 3 was proved in the inquiry by the SIT, then action would be initiated against the Sub-Divisional Magistrate who had conducted the physical verification; and conclusion No. 1, pertaining to attendance of students, was partially proved. With regards conclusion No. 1, the Additional Chief Secretary had stated in his report that the statements of around 18 students were recorded, of which one student had put in attendance of 55%, and all the others were absent; and yet scholarships were paid to them.
7. In its order in W.P. (PIL) No.228 of 2018 dated 04.01.2019, the Division Bench expressed surprise that, even on the basis of the findings recorded by him, the Additional Chief Secretary should hold that the conclusion was partially not proved; and it was not known how 4 payment of scholarships to 17, of the 18 students, who were absent throughout their course, would justify the conclusion that the charge was partially not proved. The Division Bench had, thereafter, noted the submission of the in-charge of the SIT that, despite several letters having been addressed by him to the District Social Welfare Department and the Joint Director, no response was forthcoming necessitating his having to register an FIR based on the documents received from the private individuals examined by him.
8. While expressing its suspicion that attempts were being made by certain officials of the Social Welfare Department to stonewall a probe into these grave and serious allegations of misappropriation of public funds, the Division Bench had observed that non-cooperation by the Social Welfare Department was a matter of grave and serious concern, since the very purpose of constituting the SIT, to investigate into this scam of monumental proportions, would be defeated thereby.
9. In its order in W.P. (PIL) No.228 of 2018 dated 09.01.2019, the Division Bench, after taking note of the attempts made by the Government to change Dr. T.C. Manjunath as the Chairman of the SIT, opined that the change in the SIT was only to stonewall a probe into the grave and serious allegations of misuse and misappropriation of public funds. The SIT, headed by Dr. Manjunath, Superintendent of Police, was directed to continue with its investigation; and the concerned officials in the Social Welfare Department and elsewhere in the Government of Uttarakhand, as also the private institutions, were directed to extend full co-operation to the investigation being caused by the SIT, and not to cause any hindrance thereto.
10. In our order, in W.P. (PIL) No.228 of 2018 dated 29.08.2019, we had observed that the investigation, directed to be caused into this scam allegedly running into several hundred crores, did not brook delay; amounts, meant to be paid as scholarship to students belonging to the Scheduled Castes and the Scheduled Tribes, were 5 allegedly misappropriated by the college management, middlemen, and some government officials; the Scheduled Castes and the Scheduled Tribes students belonging to the State of Uttarakhand, and studying in several private colleges both within the State of Uttarakhand and in five other States, were deprived of the scholarships to which they were entitled to; copies of the agreements, placed on record, indicated that the loot was agreed to be shared, in the ratio of 60:40, between the colleges and the middlemen; and the lack of progress in investigation, into such a grave and serious matter, was disconcerting.
11. We had, thereafter, directed Mr. Sanjay Gunjyal, Inspector General of Police and head of the SIT for the entire investigation, (apart from Dehradun and Haridwar districts), to constitute necessary teams to visit every college, verify the records, identify the students to whom the colleges had allegedly claimed to have paid the scholarships, ascertain whether or not the students, to whom scholarships were alleged to have been paid, had ever studied in the said colleges, interview the students to ascertain whether they had received the amounts, and identify the errant colleges, middlemen and government officials, involved in the scam allegedly running into more than Rs. 500 crores.
12. The SIT, headed by Dr. T.C. Manjunath, Superintendent of Police, registered FIR No.0496 of 2018 in SIDCUL Police Station, Haridwar. The tenth respondent herein filed Writ Petition (CRL) No. 774 of 2019 on 21.05.2019 seeking a writ of certiorari to quash FIR No. 0496/2018 registered under Section 420/120-B/408/409 IPC and Section 13(1) read with Section 13(2) of the Prevention of Corruption Act; and a writ of mandamus directing the respondents not to arrest him in FIR No. 0496 of 2018. In the affidavit, filed in support of W.P. (CRL) No.774 of 2019, the tenth respondent herein specifically referred to W.P. (PIL) No. 228 of 2018 filed before this Court; and questioned the competence of the Investigating Officer to investigate into the complaint.
613. On W.P. (CRL) No.774 of 2019 being listed before him on 27.05.2019, a learned Single Judge of this Court, in his order dated 27.05.2019, recorded the submission of the State Counsel that all matters, arising from FIR No. 0496/2018 in SIDCUL Police Station, Haridwar, were being heard along with W.P. (PIL) No. 228 of 2018, and directed that the matter be listed before the appropriate Bench. Questioning the said order, the tenth respondent herein filed Special Leave to Appeal (Crl.) No. 5169 of 2019. In its order dated 10.06.2019, the Supreme Court opined that it found no ground to interfere at that stage, and dismissed the Special Leave Petition making it clear that the application filed by the petitioner therein (tenth respondent herein) in the High Court for interim protection be considered and disposed of on its own merits as expeditiously as possible.
14. The petitioner (tenth respondent herein), thereafter, submitted a representation dated 02.07.2019 to the National Commission for Scheduled Tribes and, by its order passed on the same day i.e. 02.07.2019, the National Commission, while informing various officials including the Superintendent of Police, Haridwar (head of the SIT for Dehradun and Haridwar districts) to submit facts and information in the matter, and the action taken on the allegations/matters, to the Commission within 07 days of receipt of the notice for appraisal of the Chairman of the Commission, also informed that the Chairman of the Commission desired that no action be taken against the tenth respondent herein as the matter was under examination. They were also informed that, in case the Commission did not receive the reply from them within the stipulated time, it may exercise the powers of a Civil Court, conferred upon it under Clause (8) of Article 338A of the Constitution of India, and issue summons for their appearance in person before the Commission.
15. As a result of the order passed by the Commission, no action was taken thereafter against the tenth respondent herein. In his affidavit dated 20.08.2019, filed before this Court in W.P. (PIL) 228 of 2018, Dr. 7 T.C. Manjunath, head of the SIT (for Dehradun and Haridwar districts) stated as under :
"It is submitted that Shri Geetaram Nautiyal had filed S.L.P. bearing no. 5169/2019 before the Hon'ble Supreme Court of India for interim protection. But the same has been dismissed by the Hon'ble Supreme Court without any relief. In this regard a true/photocopy of the order dated 10.06.2019 is being filed herewith and marked as Annexure No. 6 to this affidavit.
It is submitted that despite this Shri Geetaram Natuiyal, then District Social Welfare Officer, Haridwar has never appeared in front of investigation officer for questioning and statement recording.
It is submitted that thereafter Shri Geetaram Nautiyal then District Social Welfare Officer, Haridwar had filed a representation before the National Commission for Schedule Tribes, New Delhi bearing File No. GN /1 /2019 /STGUL /SEHRMT /RU-1 dated 02.07.2019.
It is further submitted that in this regard the investigation officer received an order dated 02.07.2019 from National Commission for Schedule Tribes, New Delhi whereby the Hon'ble Commission has directed that no action to be taken against Shri Geetaram Nauthiyal. In this regard a true/photocopy of the order dated 02.07.2019 passed by Hon'ble National Commission for Schedule Tribes, New Delhi is being filed herewith and marked as Annexure No. 7 to this affidavit.
It is further submitted that the police investigation officer is unable to proceed further against Shri Geetaram Nautiyal and conduct further investigation because of the aforesaid order.
Further progress will be apprised to the Hon'ble Court in the future."
16. After taking note of the petitioner's contention that the request of the Chairman of the Commission, in the impugned proceeding dated 02.07.2019, was without jurisdiction, as no power was conferred on him, under Article 338A of the Constitution of India, to issue any such directions to the officials concerned, we had issued notice to all the respondents in the Writ Petition. Despite service of notice on them, neither the Commission, nor its Chairman and its members, have entered appearance through counsel nor are they present in Court today.
817. The tenth respondent is, however, represented by Mr. A.S. Rawat, learned Senior Counsel. As it is on his complaint, that the impugned proceedings dated 02.07.2019 were issued by the National Commission, we heard the submissions of both Mr. M.C. Pant, learned counsel appearing on behalf of the petitioner and Mr. A.S. Rawat, learned Senior Counsel appearing on behalf of the tenth respondent, on the jurisdiction of the National Commission for Scheduled Tribes to issue interim directions by its proceedings dated 02.07.2019.
18. Mr. M.C. Pant, learned counsel appearing on behalf of the petitioner, would submit that, unlike Superior courts i.e. the Supreme Court and the High Courts which are Courts of Record and the power of judicial review conferred on them is a part of the basic structure of the Constitution of India, the National Commission for the Scheduled Tribes is a body created under Article 338-A(1) of the Constitution of India, and its powers and functions are confined to matters specified in Article 338- A; the duties of the Commission are prescribed in clause (5) of Article 338-A; the powers of the Civil Court, trying a Suit, are conferred on the Commission only to investigate the matter referred to in clause (a), and inquire into any complaint referred to in Clause (b) of Article 338-A(5); in the absence of a specific provision conferring power on it to pass orders of injunction, the National Commission lacked jurisdiction to pass the order impugned in the Writ Petition; and since the impugned order dated 02.07.2019 suffered from lack of jurisdiction, it was liable to be set- aside.
19. Mr. M.C. Pant, learned counsel appearing on behalf of the petitioner, would further submit that the 10th respondent herein had deliberately suppressed relevant and material facts, before the National Commission, of his having filed Writ Petition (CRL) No.774 of 2019 before this Court seeking a mandamus directing the respondents not to arrest him; the 10th respondent had also failed to disclose to the National Commission the fact that he had, thereafter, approached the Supreme Court by filing Special Leave to Appeal (Criminal) No.5169 of 2019, 9 and that he had approached the National Commission, by filing the representation dated 02.07.2019, only after the Supreme Court had dismissed the Special Leave to Appeal by its order dated 10.06.2019; in his representation dated 02.07.2019, the 10th respondent had suppressed the fact that he had filed Writ Petition (CRL) No.774 of 2019 before this Court or of the Special Leave to Appeal (Criminal) preferred by him having been dismissed by the Supreme Court; he had surreptitiously obtained orders from the National Commission suppressing relevant and material facts; the impugned order of the National Commission dated 02.07.2019 tends to interfere with the investigation caused by the SIT which, in turn, is being monitored by this Court; the impugned order dated 02.07.2019, in effect, interferes with the administration of justice, since it prohibits investigation being caused against the 10th respondent, and thereby interferes with the various orders passed by this Court in W.P. (PIL) No.228 of 2018; and the impugned order passed by the National Commission dated 02.07.2019 must, therefore, be set-aside.
20. On the other hand Mr. A.S. Rawat, learned Senior Counsel appearing on behalf of the 10th respondent, would submit that, in terms of Clause (4) of Article 338(A) of the Constitution, the Commission has the power to regulate its own procedure; it had, in the exercise of such a power, framed Rules of Procedure, which were notified on 17.09.2004; clauses (a) to (f) of Paragraph 3 of the said Rules enumerates the functions and responsibilities of the National Commission as laid down in the Constitution; clauses (a) to (f) thereunder are those specified in clauses (a) to (f) of Article 338(A)(5) of the Constitution; the power of the National Commission, to pass the impugned order dated 02.07.2019, is traceable to sub-clauses (a), (b) and (f) of Article 338(A)(5) of the Constitution, and clauses (a), (b) and (f) of Paragraph 3 of the Rules of Procedure; such a power is also traceable to Paragraph 29 of the Rules of Procedure; since the matter is seized by it, the National Commission has the inherent power to pass interim orders; and the impugned order does 10 not necessitate interference in proceedings under Article 226 of the Constitution of India.
21. By the Constitution 65th Amendment Act, 1990, Article 338 of the Constitution was substituted w.e.f. 12.03.1992 providing for the constitution of a National Commission for the Scheduled Castes and the Scheduled Tribes. By the Constitution 89th Amendment Act, 2003, Article 338(A) was inserted and Article 338 of the Constitution was amended w.e.f. 19.02.2004. Prior to the 89th Amendment, there was a common National Commission for both the Scheduled Castes and the Scheduled Tribes. However, with the insertion of Article 338(A), separate National Commissions now exist, one for the Scheduled Castes and the other for the Scheduled Tribes. The duties enumerated in sub-clauses (a) to (f) of clause (5) of Article 338 of the Constitution are in pari-materia with the duties enumerated in sub-clauses (a) to (f) of Article 338-A(5) of the Constitution.
22. Clauses (a), (b) and (f) of Paragraph 3 of the Rules of Procedure are those specified in sub-clauses (a), (b) and (f) of Clause (5) of Article 338A of the Constitution. The powers of a Civil Court trying a Civil Suit, conferred on the National Commission under Article 338A (8), are, as is evident from the language employed by the said clause, available to the Commission only while investigating the matter referred to in sub-clause (a), or to inquire into any complaint referred to in sub- clause (b) of clause (5) of Article 338A of the Constitution. The scope and ambit of very same provision (albeit as it stood before the Constitution 89th Amendment Act, 2003) was considered by the Supreme Court.
23. In All India Overseas Bank SC and ST Employees' Welfare Association & others vs. Union of India & others1, the National Commission for the Scheduled Castes and the Scheduled Tribes had, by its letter dated 04.03.1993, directed the Executive Director of the Indian Overseas Bank to stop the promotion process pending further 11 investigation and final verdict in the matter. While examining the question whether the National Commission for the Scheduled Castes and the Scheduled Tribes had the power to issue a direction, in the nature of interim injunction, the Supreme Court observed:-
".....The basic question, however, is whether the Commission had the authority to issue the direction it did by the letter dated 4-3- 1993. Clauses (5) and (8) of Article 338 of the Constitution, which the appellant refers to as the source of the Commission's power, can be quoted for ready reference:
"(5) It shall be the duty of the Commission--
(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes and Scheduled Tribes under this Commission 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;
(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 report 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 12 recommendations relating to the State and the reasons for the non- acceptance, if any, of any of such recommendations. (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."
It can be seen from a plain reading of clause (8) that the Commission has the power of the civil court for the purpose of conducting an investigation contemplated in sub-clause (a) and an inquiry into a complaint referred to in sub-clause (b) of clause (5) of Article 338 of the Constitution.
Sub-clauses (a) to (f) of clause (8) clearly indicate the area in which the Commission may use the powers of a civil court. The Commission has the power to summon and enforce attendance of any person from any part of India and examine him on oath; it can require the discovery and production of documents, so on and so forth. All these powers are essential to facilitate an investigation or an inquiry. Such powers do not convert the Commission into civil court.....
........Interestingly, here, in clause (8) of Article 338, the words used are "the Commission shall ... have all the powers of the Civil Court trying a suit". But the words "all the powers of a Civil Court"
have to be exercised "while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub- clause (b) of clause 5". All the procedural powers of a civil court are given to the Commission for the purpose of investigating and inquiring into these matters and that too for that limited purpose only. The powers of a civil court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inferred or derived from a reading of clause (8) of Article 338 of the Constitution....."
(emphasis supplied) 13
24. Again in State Bank of Patiala & others vs. Vinesh Kumar Bhasin2, the Supreme Court, while examining the power of the Chief Commissioner to pass an interim order under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, observed:-
"......Section 63 provides that the Chief Commissioner and the Commissioners shall, for the purpose of discharging their functions under this Act, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 while trying a suit, in regard to the following matters:
"63. (a) summoning and enforcing the attendance of witnesses;
(b) requiring the discovery and production of any document;
(c) requisitioning any public record or copy thereof from any court or office;
(d) receiving evidence on affidavits; and
(e) issuing commissions for the examination of witnesses or documents."
Rule 42 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996 lays down the procedure to be followed by the Chief Commissioner.
It is evident from the said provisions, that neither the Chief Commissioner nor any Commissioner functioning under the Disabilities Act has power to issue any mandatory or prohibitory injunction or other interim directions. The fact that the Disabilities Act clothes them with certain powers of a civil court for discharge of their functions (which include the power to look into complaints), does not enable them to assume the other powers of a civil court which are not vested in them by the provisions of the Disabilities Act. In All India Indian Overseas Bank SC and ST Employees' Welfare Assn. v. Union of India1, this Court, dealing with Article 338(8) of the Constitution of India (similar to Section 63 of the Disabilities Act), observed as follows: (SCC pp. 609 & 611, paras 5 & 10) "5. It can be seen from a plain reading of clause (8) that the Commission has the power of the civil court for the purpose of conducting an investigation contemplated in sub-clause (a) and an inquiry into a complaint referred to in sub-clause (b) of clause (5) of Article 338 of the Constitution.
* * *
10. ... All the procedural powers of a civil court are given to the Commission for the purpose of investigating and inquiring into these matters and that too for that limited purpose only. The powers of a civil court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a 14 power be inferred or derived from a reading of clause (8) of Article 338 of the Constitution."
The order of the Chief Commissioner, not to implement the order of retirement, was illegal and without jurisdiction......."
(emphasis supplied)
25. In the light of the law laid down by the Supreme Court, in All India Overseas Bank SC and ST Employees' Welfare Association1, the powers of a Civil Court conferred on the National Commission for the Scheduled Tribes, under sub-clauses (a) to (f) of Clause 8 of Article 338-A of the Constitution, are the powers to summon and enforce attendance of any person from any part of India, and to examine him on oath; and to require the discovery and production of documents etc. These powers were conferred on the Commission as they were essential to facilitate an investigation or an inquiry; such powers did not convert the Commission into a Civil Court; the powers of the Civil Court can be exercised by the Commission while investigating the matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause 5; the procedural powers of a Civil Court are given to the Commission for the purpose of investigating and inquiring into these matters, and that too for that limited purpose only; and the power of a Civil Court to grant injunctions, temporary or permanent, did not inhere in the Commission nor could such a power be inferred or derived from a reading of clause (8) of Article 338 (or for that matter clause 8 of Article 338-A) of the Constitution.
26. In the light of the law declared by the Supreme Court, in All India Overseas Bank SC and ST Employees' Welfare Association1, the National Commission for the Scheduled Tribes lacks jurisdiction to pass the impugned order dated 02.07.2019 whereby the desire of the Chairman, that no action be taken against the 10th respondent herein as the matter was under examination by the Commission, was conveyed to various officials of the Government of Uttarakhand. Though couched as a request, the said letter dated 02.07.2019 is, in fact, an order in the nature of a temporary injunction restraining the officials, which included the 15 Superintendent of Police, Haridwar, from taking any action against the 10th respondent. As no such power is available to be exercised by the National Commission for the Scheduled Tribes, the impugned order dated 02.07.2019 is without jurisdiction, and is liable to be set-aside on this score.
27. Clause (f) of Article 338-A(5), (which is what is specified in clause (f) of Paragraph 3 of the Rules of Procedure of the National Commission for Scheduled Tribes), prescribes, as the functions and responsibilities of the Commission, the duty to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Tribes as the President may, subject to the provisions of any law made by Parliament, by rule specify. The power conferred on the President to specify by way of Rules is made subject to the provisions of any law made by Parliament. No Rule made by the President, or any law made by Parliament, conferring power on the National Commission for the Scheduled Tribes to pass orders of injunction, temporary or permanent, have been brought to our notice. In the absence of any such Rule or Law having been made, reliance placed on clause (f) of Article 338-A(5) of the Constitution, or on clause (f) of Paragraph 3 of the Rules of Procedure, is misplaced.
28. Paragraph 29 of the Rules of Procedure, on which great stress is placed by Mr. A.S. Rawat, learned Senior Counsel appearing on behalf of the 10th respondent, stipulates that, where the property, service/employment of the Scheduled Tribes and other related matters are under immediate threat, and the prompt attention of the Commission is required, the matter shall be taken cognizance, by issuing a telex/fax to the concerned authority, making it known to them that the Commission is seized of the issue; urgent reply by telegram or fax shall be called from the concerned authority; and in case no reply is received within ten working days, the authority concerned may be required to appear before the Commission at a shorter notice for enquiry. All that Paragraph 29 of the Rules of Procedure enables the Commission to do is to take 16 cognizance merely by issuing a telex/fax, and to call for an urgent reply, by telegram or fax, from the concerned authority; and, in case, no response is forthcoming, to direct the authority to appear before the Commission for inquiry. Paragraph 29 of the Rules of Procedure does not confer any power on the Commission to pass orders of injunction- temporary or permanent. Reliance placed on behalf of the 10the respondent, on Paragraph 29 of the Rules of Procedure, is also misplaced.
29. In 2016, the National Commission for the Scheduled Tribes prescribed the procedure for inquiry and, in terms thereof, certain aspects were required to be kept in mind while filing a complaint before the Commission. Among the aspects referred to are that no action would be taken on matters which are subjudice; and hence sub-judice matters need not be referred as a matter of complaint. Despite the fact that the 10th respondent had, in his representation dated 02.07.2019, referred to the pendency of W.P. (PIL) No.228 of 2018 before this Court, the National Commission, contrary to its own procedure, has entertained the 10th respondent's compliant, and has passed the impugned order dated 02.07.2019. While this act of the National Commission does appear to us to interfere with the proceedings pending before us in W.P. (PIL) No.228 of 2018, and can be construed as a disguised attempt to interfere with the administration of justice by this Court, justifying the Chairman and Members of the Commission being called upon to show-cause why action for criminal contempt should not be initiated against them under the Contempt of Courts Act, we refrain from doing so bearing in mind that the National Commission for the Scheduled Tribes, a body created under Article 338(A) of the Constitution of India, may, having regards to its Constitutional status, be presumed to be unaware of the proceedings pending before this High Court.
30. We find it disconcerting that the National Commission should continue to pass orders, such as that impugned in this Writ Petition, despite the Supreme Court having clearly held, in All India Overseas Bank SC & ST Employees' Association1, that it lacks the 17 power to pass orders of injunction, temporary or permanent. With the fond hope and trust that the National Commission for the Scheduled Tribes would desist from issuing any such directions, and from making any such requests, in future, we refrain from saying anything more.
31. The sharp practice, resorted to by the 10th respondent, needs to be deprecated. It is evident from a bare reading of his representation dated 02.07.2019 that, while requesting the Commission to stop his being arrested, the 10th respondent has suppressed the fact that he had already filed W.P. (CRL) No.774 of 2019 before this Court on 21.05.2019, and Special Leave to Appeal (Criminal) No.5169 of 2019 filed by him was dismissed by the Supreme Court on 10.06.2019. Suppression of these relevant and material facts before the National Commission is, evidently, because the procedure for inquiry, prescribed by the National Commission itself, stipulates that no action would be taken on matters which are sub-judice, and sub-judice matters need not be referred to the Commission as complaints.
32. Writ Petition (Criminal) No.774 of 2019 is sub-judice before this Court, and the 10th respondent has surreptitiously, and without reference to his having filed W.P. (CRL) No.774 of 2019 before this Court and Special Leave to Appeal (Criminal) No.5169 of 2019 before the Supreme Court, filed the complaint dated 02.07.2019 resulting in the impugned order dated 02.07.2019 being passed by the National Commission. The order, impugned in this Writ Petition, has been secured by the 10th respondent suppressing relevant and material facts, and he has thereby thwarted further investigation being caused against him by the SIT headed by Dr. T.C. Manjunath. The various directions issued by the Court in W.P. (PIL) No.228 of 2018 as noted hereinabove, and its attempts to have the investigation completed by the SIT early, have been successfully stonewalled by the 10th respondent surreptitiously securing the impugned order dated 02.07.2019. The 10th respondent is, therefore, liable to pay exemplary costs for having interfered with the administration of justice by this Court, and in impeding the SIT 18 investigation being monitored by this Court in W.P. (PIL) No.228 of 2018.
33. The impugned order of the National Commission for Scheduled Tribes dated 02.07.2019 is quashed. The Writ Petition is allowed with exemplary costs of Rs.25,000/- which the 10th respondent shall pay to the Uttarakhand State Legal Services Authority within four weeks from today, failing which it is open to the Uttarakhand State Legal Services Authority to recover the said amount in accordance with law.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, C.J.) 17.09.2019 17.09.2019 NISHANT