Government Of West Bengal & Ors vs National Commission For ...
2023 Latest Caselaw 3600 Cal

                     IN THE HIGH COURT AT CALCUTTA
                      Constitutional Writ Jurisdiction
                              Appellate Side


Present :-
The Hon'ble Justice Moushumi Bhattacharya


                            WPA 9595 of 2023

                        State of West Bengal,
    Service through the Department of Health and Family Welfare,
                 Government of West Bengal & Ors.

                                     vs.

              National Commission for Scheduled Castes,
       through the Under Secretary, Government of India & Ors.


For the petitioner                             :   Mr. S.N. Mookherjee, Ld. AG.
                                                   Mr. Anirban Ray, Ld. GP.
                                                   Mr. Jayanta Sengupta, Adv.
                                                   Ms. Shrivalli Kajaria, Adv.
                                                   Mr. Piyush Agarwal, Adv.

For the respondent nos. 1 & 2.             :       Mr. Billwadal Bhattacharya, Ld. DSG.
                                                   Ms. Sayani Roy Chowdhury, Adv.


For the respondent no. 3                   :       Mr. D.N. Ray, Adv.
                                                   Mr. Biswarup Nandy, Adv.
                                                   Mr. Rajesh Kumar Shah, Adv.


Last Heard on                                  :   16.05.2023.



Delivered on                                   :   19.05.2023.
                                        2


Moushumi Bhattacharya, J.

1. The first petitioner is the State of West Bengal through the

Department of Health and Family Welfare and the other petitioners are the

Principal Secretary, Senior Special Secretary and the Director of the said

Department. The petitioners seek a mandamus commanding the National

Commission for Scheduled Castes and the Vice Chairperson of the

Commission to rescind the recommendation made by the Commission on

3.2.2023 and not to give any further effect thereto. The recommendations

were made pursuant to a hearing dated 3.2.2023 and were communicated to

the petitioners by way of a letter dated 9.2.2023.

2. The impugned recommendations, which is part of the Minutes of the

hearing dated 3.2.2023, were made on a complaint filed by the private

respondent no. 3. It was recommended that respondent no.3 be allowed to

join his duty in the Department of Health and Family Welfare. The

Commission further recommended that the respondent no. 3 be paid his

salary with effect from 23.6.2021. The concerned competent authority of the

Department was also directed to appear before the Commission on the

scheduled date of hearing and submit an Action Taken Report within 15

days from the date of the signature on the Minutes by the respondent no. 2

/ Vice Chairperson of the Commission.

3. The learned Advocate General assisted by the learned Government

Pleader urges that the impugned recommendations suffer from a lack of

jurisdiction. Counsel places the correspondence between the parties to show

that the complaint made by the respondent no. 3 related to a service matter

and hence the Commission does not have the power to adjudicate on the

complaint. Counsel submits that the Commission could not have directed

the petitioners to submit an Action Taken Report which essentially amounts

to a direction on the petitioners, which is also beyond the jurisdiction of the

Commission under Article 338 of the Constitution. It is also submitted that

no case has been made out by the Commission to initiate proceedings on the

complaint made by the private respondent no. 3.

4. The learned DSG appearing for the Commission places documents to

show that the petitioners participated in the proceedings and sought

exemption to appear on the ground of intervening festivals and holidays.

Counsel submits that Article 338A(8) empowers the Commission to

investigate any matter and that the Commission has been vested with all the

powers of a civil court trying a suit including summoning any person from

any part of the country. Counsel refers to the Rules of Procedure of the

National Commission for Scheduled Castes notified on 25.3.2009 under

which Rule 7.2 (a)(vii) provides for service and employment of Scheduled

Castes and related matters. Counsel submits that the writ petition has only

been filed on the apprehension of arrest of the petitioner nos. 2-4 and that

too from a "BREAKING NEWS" aired in the electronic media. Counsel

submits that the petitioners should be asked to participate in the

proceedings and deal with the allegations made by the respondent no. 3.

5. Learned counsel appearing for the private respondent no. 3 /

complainant before the Commission submits that the respondent no. 3 is a

member of a Scheduled Caste. Counsel submits that the respondent no. 3

has been harassed by the concerned Department of the State and further

that the petitioners refused to appear and participate in the proceedings.

6. The National Commission for Scheduled Castes/respondent no. 1

derives its existence and source of power from Article 338 of the

Constitution of India. The duties of the Commission may be found under

Article 338(5) which covers investigation and monitoring of all matters

related to the safeguards provided for the Scheduled Castes under the

Constitution or under any other law for the time being in force, the

evaluation of the working of such safeguards and inquiry into specific

complaints with respect to deprivation of rights and safeguards of the

Scheduled Castes: 338(5)(a),(b). Sub-clause (e) of Article 338(5) includes the

duty to make recommendations as to the measures that should be taken by

the Union or any State for the effective implementation of the safeguards

referred to in sub-clause (a) and other measures for the protection, welfare

and socio-economic development of the Scheduled Castes.

7. Clause (8) of Article 338 vests the Commission with the power of a

civil court during investigation of any matter referred to in clause 5(a) or an

inquiry into a complaint under clause 5(b).

8. Therefore, clause (8) of Article 338 contemplates vesting of the powers

of a civil court on the National Commission in relation to the duties

enumerated in sub-clause (a)-(f) of clause 5, which include investigating or

making an inquiry into any matter relating to the safeguards provided for

the Scheduled Castes or into specific complaints with respect to the

deprivation of the right and safeguards of the Scheduled Castes. The power

of the Commission to summon and enforce the attendance of any person

under Article 338(8)(a) is circumscribed by the duty specified under Article

338(5)(a) and (b).

9. The question in the present case is whether the recommendations

made by the Commission vide the Minutes of Hearing dated 3.2.2023 were

within the powers and duties vested in the Commission under Article 338 of

the Constitution.

10. The admitted facts are that the respondent no. 3 was an employee of

the Department of Health and Family Welfare, Government of West Bengal.

The respondent no. 3 first resigned from service on 5.1.2021. The

respondent no. 3 gave a second letter of resignation on 27.1.2021 through

proper channel citing his inability to serve in Alipurduar. Disciplinary

proceedings were initiated against the respondent no. 3 which culminated in

an order of dismissal on 5.4.2023. A show-cause notice had earlier been

issued on the respondent no. 3 on 21.10.2022 followed by a reply of the

respondent no. 3 on 22.11.2022 containing an admission that the

respondent no. 3 had committed a "grave offence" and that punishment,

other than dismissal, may be imposed on the respondent.

11. The respondent no. 3, in the meantime lodged a complaint before the

Commission on 5.7.22 stating that he belonged to the Namasudra

community which is a sub-caste of the Matua community and that he had

suffered injustice from the Government machinery since 27.1.2021. The

Under Secretary to the Government of India wrote a letter to the Senior

Special Secretary, Health and Family Welfare Department, on 12.9.2022

informing the Department about the complaint and requesting the

Department to submit facts and information on the action taken on the

allegations within 7 days of receipt of the notice. The Commission called the

petitioner and the respondent no. 3 for a hearing; correspondences were

exchanged between the parties in this regard and culminated in the Minutes

of Hearing dated 3.2.2023 where both the parties were present. The

impugned recommendations were part of the Minutes and were

communicated to the petitioners on 9.2.2023. The petitioners were called

upon to submit an Action Taken Report as per the recommendations of the

Commission.

12. There are several documents which disclose the nature of the

complaint made by the respondent no. 3 to the Commission on 5.7.2022.

First, the complaint merely states that the respondent had suffered injustice

from the Government machinery for participating in the West Bengal

Legislative Election 2021 and that the complainant/respondent no. 3

belonged to a sub-caste of the Matua community. There is no case of

discrimination or violation of the safeguards provided to the Scheduled

Caste or any deprivation of rights suffered by the respondent no. 3 as a

member of Scheduled Caste in the complaint. Second, the letter of the

Department of Health and Family Welfare dated 22.11.2022 refers to

departmental proceedings initiated against the respondent no. 3 on violation

of service norms. The letter emphasizes that the matter does not relate to

caste discrimination. Third, the impugned Minutes/recommendations refer

to an application filed by the petitioner/respondent no. 3 in the West Bengal

Administrative Tribunal, Kolkata, in 2021 and an order passed by the

Tribunal on 13.8.2021 directing the Secretary, Department of Health and

Family Welfare to consider the application of the respondent no. 3 for

withdrawal of resignation and for resumption of duty by passing a reasoned

order within 8 weeks from the date of communication of the order. The

Tribunal further directed that the respondent no. 3 shall have to join at

Alipurduar at his transferred place of posting.

13. The above makes it clear that the complaint of the respondent no. 3

before the Commission was not related to any discrimination, violation of

safeguards or deprivation of the rights of the respondent no. 3 as a member

of the Scheduled Caste. It was a case of a disgruntled employee who took his

dissatisfaction to the Commission as a last resort. The Commission, on its

part, travelled beyond its jurisdiction to issue the impugned

recommendations, not only for reinstatement of the respondent no. 3, but

also for payment of his salary with effect from 23.6.2021. The Commission

further directed the petitioners to file an Action Taken Report within 15 days

from the date of signature on the Minutes by the Vice-Chairman of the

Commission.

14. Rule 7.2(a)(vii) of the Rules of Procedure of the National Commission

for Scheduled Castes, notified on 23.5.2009, which includes

service/employment of Scheduled Caste and other related matters cannot be

divorced from the periphery of Rule 7.2(a)(i)i. Rule 7.2(a)(i) empowers the

Commission to investigate and enquire into matters relating to safeguards,

protection, welfare and development of the Scheduled Castes, and into

specific complaints for which the Commission takes up investigation or

inquiry. The language of Rule 7.2(a)(i) borrows from the language of Article

338(5)(a) and (b) of the Constitution of India which specify the duties of the

Commission. The inescapable conclusion hence is that matters of service or

employment and any investigation or inquiry in related matters must be

ring-fenced by the constitutional safeguards under Article 338(5) pertaining

to members of the Scheduled Caste. The investigation and inquiry, in

essence, must relate to specific complaints involving discrimination,

deprivation or violation of the safeguards accorded to members of the

Scheduled Castes.

15. The present complaint does not fall within the purview of the

constitutional mandate with regard to the jurisdiction of the Commission.

The impugned recommendations also make it clear that the Commission

has virtually acted as an appellate forum with reference to the order passed

by the West Bengal Administrative Tribunal by recommending the

reinstatement of the respondent no. 3.

16. Moreover, demanding an Action Taken Report from the petitioner in

pursuance of recommendation takes on the colour of a direction. The

Supreme Court in All India Indian Overseas Bank SC and ST Employees'

Welfare Association v. Union of India; (1996) 6 SCC 606 held that the powers

of the Commission under Article 338(8) are essentially to facilitate an

investigation or inquiry but that such powers do not convert the

Commission into a Civil Court. The Supreme Court further held that that

the Commission does not have the power of the civil court in granting

injunction, whether temporary or permanent. The order of the Delhi High

Court in Maharaja Agrasen College v. Narender Kumar, W.P (C) 521/2018 &

CM No. 2232/2018 and of this Court in Board of Major Port Authority for

Syama Prasad Mookerjee Port Kolkata v. Government of India, National

Commission for Scheduled Castes in W.P.A. 1243 of 2023 were passed on

the jurisdictional question outlining the bounds of the jurisdiction vested in

the Commission.

17. The argument made on behalf of the Commission and the private

respondent no. 3 on the issue of participation in the proceedings is not a

satisfactory defense to assumption of jurisdiction by the Commission where

the case is a service matter, simpliciter. The petitioners appearing before the

Commission or writing letters to it or presenting themselves for appearance

will not cure the inherent lack of jurisdiction. The question is not of the

investigation being allowed to continue as a matter of course; the question is

whether the investigation could have started at all. Any action or decision

taken in excess or in the absence of jurisdiction would not only nullify the

very initiation of proceedings but all that follows post-initiation. The

Commission cannot wrest jurisdiction to proceed where there is none.

18. WPA 9595 of 2023 is accordingly allowed and disposed of by directing

the National Commission for Scheduled Castes to recall and withdraw the

recommendations made pursuant to the hearing held on 3.2.2023. The

respondent no. 1 Commission shall not act in terms of the recommendations

or give effect to the same.

19. Although affidavits have not been called for, learned counsel for the

parties have made elaborate submissions on the writ petition and the writ

petition is being disposed of on that basis.

20. The learned DSG appearing for the Commission makes a prayer for

stay of the operation of this judgment. Since the Court has held that the

Commission did not have the jurisdiction to initiate the

investigation/enquiry, the prayer for stay is considered and refused.

Urgent Photostat certified copies of this judgment, if applied for, be

supplied to the parties upon fulfillment of requisite formalities.

(Moushumi Bhattacharya, J.)