Andhra Pradesh High Court - Amravati
N Narasimhulu vs National Commission For Scheduled ... on 7 February, 2020
Author: T. Rajani
Bench: T. Rajani
* SMT JUSTICE T. RAJANI
+ WRIT PETITION No.4634 of 2019
% 07.02.2020
# N.Narasimhulu.
... Petitioner
Vs.
$ 1. National Commission for Scheduled Tribes, rep. by its Chairman
and others
.... Respondents
! Counsel for the petitioners: SRI Y.V.RAVI KUMAR
Counsel for the Respondents: SRI B.KRISHNA MOHAN
ASSISTANT SOLICITOR GENERAL
FOR RESPONDENT 1.
SRI METTA CHANDRASEKHAR
RAO
STANDING COUNSEL FOR
RESPONDENT 2
SMT.S.V.INDIRA
FOR RESPONDENT 3.
<Gist :
>Head Note:
? Cases referred:
1. 2001 LAB. I.C. 3656
2. AIR 1978 SC 1410
3. 1960-2 LLJ 37 SC
4. (1983) 4 SCC 2931
2
HIGH COUIRT OF ANDHRA PRADESH: AMARAVATHI.
WRIT PETITION No.4634 of 2019
Between:
N.Narasimhulu.
... Petitioner
Vs.
National Commission for Scheduled Tribes, rep. by its Chairman and
others
.... Respondents
Date of Judgment Pronounced: 07.02.2020
Submitted for Approval:
SMT JUSTICE T. RAJANI
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the judgments ?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Their Ladyship/Lordship wish to Yes/No
see the fair copy of the Judgment ?
______________
T. RAJANI, J
3
SMT JUSTICE T.RAJANI
WRIT PETITION No.4634 of 2019
ORDER:
By way of this writ petition, the petitioner seeks to declare the action of the 1st respondent in issuing the proceedings, dated 14.03.2019, directing the 2nd respondent to reopen the punishment imposed in the year 2001 and to conduct re-enquiry into the allegations made in the charge Memo, dated 21.09.2005, and revise the seniority of the 3rd respondent effecting the rights of the petitioner and consequential communication of the 1st respondent, dated 15.03.2019 with a direction to the 2nd respondent and submit report, as illegal.
2. The petitioner joined Andhra Pradesh State Electricity Board as Assistant Engineer on 22.08.1992. later, he was promoted as Assistant Divisional Engineer in the then A.P.Transco on 31.12.2000. He was promoted as Divisional Engineer (Elec.) on 03.07.2006 following the rule of reservation in favour of the Scheduled Castes (for short, "SCs") and Scheduled Tribes (for short, "STs"), as adopted by the AP TRANSCO/APSPDCL. He was further promoted as Superintending Engineer on temporary/adhoc basis vide orders, dated 10.12.2008. He worked upto 06.08.2009 and his probation was declared by virtue of Memo dated 07.05.2011. He was further promoted as Chief Engineer with effect from 01.08.2013 and he is presently working as such. One Koduri Narayana Rao made a representation, dated 01.08.2018, to the 1st respondent Commission requesting to consider the case for promotion of the 3rd respondent, who belongs to 4 ST category, stating that he was discriminated in filling the ST roster point at appropriate stage. The National Commission for STs, issued a notice dated 29.11.2018 seeking report from the Principal Secretary, Energy Department, Government of Andhra Pradesh. The APSPDCL submits its report dated 11.01.2019. Not satisfied with the said report, a meeting was fixed on 27.02.2019, wherein the Chairman and Managing Director, APSPDCL, was called for discussion. The said meeting was deferred to 14.03.2019. The APSPDCL submitted a detailed action taken report vide letter dated 25.02.2019, detailing that the request of the 3rd respondent cannot be considered as per Rules invogue. Thereafter, sittings were held on 14.03.2019, wherein the 3rd respondent is alleged to have submitted that he was denied promotion to the post of Divisional Engineer with effect from 03.07.2016 by arbitrarily imposition of punishment of stoppage of one increment. The Commission, observing that the 3rd respondent was awarded dual punishment for one charge of irregularities and accordingly recommended to the Chairman & Managing Director, APSPDCL, to re-conduct the enquiry into the allegations. The said recommendations are beyond the scope and jurisdiction of the National Commission. Hence, this writ petition seeking the above mentioned reliefs.
3. The 3rd respondent filed counter putting forth his service particulars and stating that he has been working honestly. Further contention is that the punishment imposed on the 3rd respondent commenced from 31.01.2006 and expired by 31.01.2007. Subsequently, 5 he was promoted by proceedings, dated 05.12.2008, but the respondents promoted juniors to the 3rd respondent as per the seniority list in the cadre of Divisional Engineer, dated 05.07.2008, as on 01.04.2007, by which the 3rd respondent already became eligible and entitled for promotion. The 3rd respondent made representation to consider his case for notional promotion. It is contended that the 1st respondent is a constitutional body set up under Article 338A of the Constitution of India, to safeguard the STs under the Constitution of India. The recommendations made by the Commission are misinterpreted as if they are going to affect promotion of the petitioner. The writ petition is misconceived and hence, the same is liable to be dismissed.
4. Heard Sri Y.V.Ravi Kumar, learned senior counsel appearing for the petitioner; Sri B.Krishna Mohan, learned Assistant Solicitor General appearing for the 1st respondent; Sri Metta Chandrasekhar Rao, learned Standing Counsel for the 2nd respondent; and Smt.S.V.Indira, learned counsel appearing for the 3rd respondent.
5. Under Article 338A of the Constitution of India, a Commission for STs to be known as Notional Commission for STs shall be appointed and the duties of the Commission under 338A(5)(a) are to investigate and monitor all matters relating to the safeguards provided for the STs under this Constitution or under any other law for the time being in force or any order of the Government and to evaluate the working of such safeguards. Whether the service matters pertaining to 6 an SC person would come within the purview of the said duty given to the Commission under Article 338A is the question that falls for consideration in this writ petition.
6. The Supreme Court in the judgment reported in KARNATAKA ANTIBIOTICS AND ANTOHER VS. NATIONAL COMMISSION SC AND ST OTHER1, has categorically ruled that the Commission does not have power to set aside a concluded enquiry and the order of penalty and the order of the appellate authority under Article 338 of the Constitution of India. The 2nd respondent therein, who was the member of the Commission, directed the 3rd respondent to conduct a fresh enquiry, to treat the 4th respondent as deemed to have been continued in service and pay the salary and other allowances. The Court held that by the said impugned direction, the 2nd respondent virtually set aside the enquiry report and the order of penalty.
7. The contention of the respondents' counsel is that the Commission is empowered to make recommendations and that the same was approved by the Supreme Court of India in ALL INDIA INDIAN OVERSEAS BANK SC & ST EMPLOYEES' WELFARE ASSN. VS. UNION OF INDIA2. She relies on that part of the judgment whereunder Article 338A was extracted. As per the stipulation under Clause (e) of 338A(5), the Commission no doubt is empowered to make recommendations, but those recommendations should relate to the measures that should be taken by the Union or any 1 2008 SCC ONLINE Kar 205 2 (1996) 6 SCC 606 7 State for the effective implementation of those safeguards and other measures for protection, welfare, and socio economic development of the SCs and STs. The question of seniority and the disciplinary proceedings, at any stretch of imagination, cannot be brought within the purview of the above provision. Recommendations can only be for the effective implementation of the safeguards and other measures for protection, welfare and socio economic development of the STs. The purview of the powers of the National Commission for STs at point 8.2 is explicit, that the Commission will also not intervene in vigilance and disciplinary case as no safeguards are provided to the employees belonging to the STs in such matters and also that the commission is not an appellate authority in such cases and that there is an elaborate well defined procedure prescribed in respective service rules for making an appeal for reconsideration by the competent authorities though the matter can be taken up with the concerned organization.
8. The word used by the National Commission for STs in the impugned proceedings, though is termed as recommendation, directs the Chairman & Managing Director, APSPDCL, to re-conduct the enquiry into the allegations of the original complaint. It also went into the merits of the complaint that was made before it.
9. In the light of the above legal position, this court opines that the recommendation, as was made by the National Commission, is not a recommendation of the nature, which is permitted under Article 8 338A(5)(e). Hence, the same cannot be sustained and is liable to be set aside.
With the above observations, the writ petition is allowed setting aside the proceedings, dated 14.03.2019 issued by the 1st respondent. As a sequel, the miscellaneous applications pending, if any, shall stand closed.
______________ T. RAJANI, J February 7, 2020 LMV 9 JUSTICE T.RAJANI WRIT PETITION No. 4634 of 2019 February 7, 2020 LMV