Delhi High Court
National Hydroelectric Power ... vs National Commission For ... on 26 September, 2002
Equivalent citations: 100 (2002) DLT 670
Author: V Jain
Bench: V Jain
JUDGMENT
Vijender Jain, J.
1. Rule.
2. This writ petition can be disposed of at this
stage.
3. The petitioner is aggrieved by issuance of notice
to Mr. Yogendra Prasad, Chairman and Managing Director,
National Hydroelectric Power Corporation Ltd.
4. Mr. Dutta counsel for the petitioners has
contended that at very first time while issuing notice by
Mr. Harinder Singh Khalsa, respondent No. 2 could not have
summoned petitioner No. 2, Chairman & Managing Director of
the Corporation for personal appearance. It was
contended that neither there was a willful default nor
non-cooperation by the petitioners. Commission instead
of taking note of the fact that complainant had already
filed a writ petition in High Court, could not have
maintained a petition before the Commission.
4. On the other hand counsel for the respondent has
contended that power to summon is implicit in Article 338
of the Constitution of India and therefore, summoning of
petitioner No. 2 was justified in terms of Article 338(5)
of the Constitution of India.
5. I have heard the counsel for the parties. I have
asked the counsel appearing for the respondent whether
there ware any procedure laid down by the Commission or
any rules and regulations with regard to the method to
investigate complaints referred to the Commission under
Article 338 of the Constitution of India. Counsel for
the respondent is unable to sow me any rules and
regulations or guide-lines laid down in this regard by
the Commission. No rules or guide-lines have been either
framed or adopted for exercise of power under Article 338
of the Constitution for summarily issuing summons for
personal appearance of the petitioner No. 2. If such
power is given and the exercise of such power in a manner
as has been done would amount to colorable exercise of
the power vested with the respondent. In the present
case it seems to be so.
6. In paragraph 7 of the writ petition it has been
mentioned that respondent No. 2 who was Member of the
Commission at the relevant time came personably to visit
the office of the petitioner Corporation on 19.3.2001
allegedly to review the implementation of the reservation
policy in the Corporation. Petitioner No. 2, Chairman &
Managing Director was not there as he had to leave for
one project in Himachal Pradesh. Respondent No. 2 issued
the impugned summons after three days of his visit to
petitioners office. The issuance of the summons by
Member of the Commission was without following the due
process of law. As a matter of fact, at the time when
the Commission is entertaining a complaint, matter has to
be investigated and efforts ought to have been made by
the Commission to have reply of the Corporation at the
first instance. In this case a reply was sent by the
Corporation that the matter pertaining to the complaint
filed by respondent No. 3 is pending in this Court under
Article 226 of the Constitution of India. The case of
the petitioner was that respondent No. 3 was considered
for the post of Executive Director by the DPC held on
11.1.1997 and 7.1.1998 but he was not found fit by the
DPC for promotion. It was also the case of the
petitioners that respondent No. 3 was again considered for
promotion by DPC held on 10.12.1999 and 27.7.2000 and the
result of the DPC held on 27.7.2000 was kept in sealed
cover because of a pending CBI case against respondent
No. 3. The case against respondent No. 3 before the CBI
pertains to the offences under Section 13(2) and 13(1)(a) & (d) of Prevention of Corruption Act read with Section
120 IPC.
7. Against the said non-promotion, respondent No. 3
had filed a writ petition (CWP No. 189/97) which was
dismissed as withdrawn on 10.2.1998. Thereafter
respondent NO. 3 filed another writ petition (CWP
4109/2000) which is still pending in this Court and
interim stay was specifically declined and during the
pendency of the said writ petition, respondent No. 3 filed
a complaint before National Commission for Scheduled
Castes and Scheduled Tribes on 16.10.2000. He also filed
a complaint before the Parliamentary Committee on Welfare
of Scheduled Castes and Scheduled Tribes on 11.10.2000
and the National Human Rights Commission on 11.10.2000.
It is also the case of the petitioners that in the
aforesaid complaints, respondent No. 3 has not disclosed
the factum of the pendency of the writ petition before
this Court.
8. As the complainant himself has filed writ
petition and when said fact was brought to the notice of
the Commission, the Commission ought to have dismissed
the complaint as two remedies are not contemplated in our
legal jurisprudence. There was no jurisdiction for the
Commission to act under Article 338 of the Constitution
of India when respondent No. 3 had already invoked the
extra ordinary writ jurisdiction of this Court under
Article 226 of the Constitution of India. In spite of
doing that, respondent No. 2 issued summons for personal
appearance of petitioner No. 2 within three days of his
visiting the office of the Corporation. This shows
complete lack of understanding by respondent No. 2 of rule
of law and this kind of act was without the authority of
law and beyond the scope of jurisdiction vested in
respondent under Article 338 of the Constitution of
India. Apart from this the said action of the respondent
No. 2 is in complete disregard to the lofty ideals for
which the Parliament has inserted Article 338 of the
Constitution of India. The power to investigate and the
power to issue direction has to be circumscribed by rule
of law. The impugned action of respondent No. 2 was not
permissible within the parameters, well establishing norms
and the same was whimsical and arbitrary. Therefore, the
same is quashed.
9. Writ petition as well as application is allowed.
10. Rule is made absolute.
