Union Of India And Another vs National Commission For ...
2023 Latest Caselaw 6473 Cal

25th September,
 2023
 (AK)
 25

                                      W.P.A 13474 of 2023

                              Union of India and another
                                          Vs.
                  National Commission for Scheduled Castes and others


                             Mr. Pulakesh Bajpayee
                             Mr. Kushi Prasun Chatterjee
                                                      ...for the petitioner.



              1.      Learned counsel for the petitioner contends that

              the National Commission for Scheduled Castes derives its

              powers from Article 338 of the Constitution of India.

              2.      Despite such power being restricted to making

              recommendations before the appropriate Government, the

              Commission in the present case, has been harassing the

              officers of the petitioner no.2 by repeatedly summoning

              them     and    after    giving   purported   hearing,   making

              directions, de hors the provisions of Article 338 of the

              Constitution of India.

              3.      In the present specific instance, the petitioners

              challenge such an order dated March 27, 2023 annexed

              at page-60 of the writ petition whereby the Commission,

              in the garb of a recommendation, directed the petitioners

              to promote a particular employee as J.E.
                                   2




4.      It was further observed by the Commission that the

action taken report should reach the Commission Office

after receiving the minutes within seven days.

5.      If the order is not complied then the Commission

may     recommend      to    invoke     Section     4   under      the

appropriate Act.

6.      It is argued that such exercise of power is de hors

the provisions of Article 338. Learned counsel, in support

of   his    propositions,     cites   several     Supreme        Court

judgments, including the case of All India Indian Overseas

Bank SC & ST Employees Welfare Association and others

vs. Union of India and others.

7.      In the said judgment, the Supreme Court observed,

while      adjudicating      upon     Article     338(8)    of     the

Constitution, that under the said provision, all the

procedural powers of a civil court are given to the

Commission       for   the    purpose      of    investigating    and

enquiring into the matters and that too for that limited

purpose only.

8.      The powers of a civil court of granting injunction,

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 of India, it was observed.

9.      Despite service, none appears for the respondents.

10. Affidavit-of-service filed in court today be kept on

record.

11. The limited compass of the present adjudication is

the scope and powers of the Commission under Article

338 of the Constitution of India.

12. The said provision set forth herein below:

(1) There shall be a Commission for the Scheduled Castes to be

known as the National Commission for the Scheduled Castes.

(2) Subject to the provisions of any law made in this behalf by

Parliament, the Commission shall consist of a Chairperson, Vice-

Chairperson and three 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 to the

safeguards provided for the Scheduled Castes 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;

(c) to participate and advise on the planning process of socio-

economic development of the Scheduled Castes 1*** 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 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

(f) to discharge such other functions in relation to the protection,

welfare and development and advancement of the Scheduled

Castes

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.

(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.

(10) In this article, references to the Scheduled Castes shall be

construed as including references to the Anglo-Indian

community.

13. On a perusal of the said provision, it is seen that

the duty of the Commission, inter-alia, pertains to enquire

into specific complaints with respect to the deprivation of

rights and safeguards of the Scheduled Castes, to

investigate and monitor all matters relating to the

safeguards provided for the Scheduled Castes under the

Constitution or any other law, to participate and advise

on the planning process of socio-economic development of

the Scheduled Castes, etc.

14. The powers of the Commission also envisages

presentation to the President, annually and at such other

times as the Commission may deem fit, reports on the

working of those safeguards, etc.

15. Thus, a perusal of the provisions of Article 338

shows that the powers of the Commission pertain to

certain duties of the Commission to ensure that the

safeguards are in place.

16. However, the Commission does not have any

powers akin to a judicial forum, or anything to show that

it has sanction behind the recommendations made by it

for enforcing such recommendations.

17. The power of the Commission is essentially

recommendatory. The Commission cannot enforce its

powers by any process of law. For such enforcement, the

parties concerned are to resort to the appropriate

provisions of the extant law.

18. Clause (6) of Article 338 provides that the President

shall cause all such reports, filed by the Commission, 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.

19. In Clause (8) of Article 338, the Commission's

powers, akin to a civil court on certain aspects in

investigating any matter referred to in sub-clauses (a) or

(b) of Clause (5), have been enumerated, including the

powers to summon, discovery, receiving evidence on

affidavits, etc.

20. However, the powers under Clause (8) are to be

performed within the limited conspectus of Clause (5),

sub-Clauses (a) and (b). Sub-clause (a) provides that the

Commission may investigate and monitor all matters

relating to safeguards provided for the Scheduled Castes

under the Constitution or any law and to evaluate the

working of such safeguards.

21. Sub-clause (b) pertains to enquiry into specific

complaints with respect to the deprivation of rights and

safeguards of the Scheduled Castes.

22. Such duties, regarding which powers have been

conferred in Clause (8), all are of a general nature and do

not confer any power on the Commission to exercise

jurisdiction in passing directions and/or enforcing the

same on any particular employer or authority.

23. Hence, the exercise sought to be undertaken by the

Commission in the impugned order dated March 27, 2023

was palpably de hors the law, the provisions of the

Constitution and the authority conferred on the

Commission by the Constitution.

24. The Commission, by the said order, specifically

directed the petitioners to comply with its

recommendations and in the event such order is not

complied with, the Commission issued a threat of making

recommendations to invoke Section 4 of the 1989 Act.

25. Such exercise of the Commission is palpably de

hors the law and is arbitrary, being not sanctioned by

Article 338 of the Constitution, which is the repository of

power of the Commission.

26. In any event, if any particular person is aggrieved

by any action of its employer, he or she is at liberty to

take appropriate measures under the Scheduled Castes

and Scheduled Tribes Prevention of Atrocities Act, 1989.

27. The Commission is not an 'authority' contemplated

under the said Act. Hence, the impugned order is

required to be set aside.

28. Accordingly, WPA 13474 of 2023 is allowed, thereby

setting aside the order of the National Commission for

Scheduled Castes dated March 27, 2023, annexed as

Annexure-P6 at page-60 of the writ petition.

29. It is expected that the Commission shall not

undertake any such endeavour in future which is

palpably de hors its powers and shall leave it open to the

aggrieved parties to take recourse to the 1989 Act or any

other governing statute enacted by the legislature in that

regard.

There will be no order as to costs.

Urgent photostat copies of this order, if applied for,

be given to the parties upon compliance of all requisite

formalities.

(Sabyasachi Bhattacharyya, J.)