Union Of India vs National Commission For ...
2014 Latest Caselaw 4908 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) 6672/2014

                                              Decided on : 29.09.2014

IN THE MATTER OF

UNION OF INDIA                                ..... Petitioner
                       Through: Mr. Sanjay Jain, ASG with
                       Mr. Vivek Goyal, CGSC with Ms. Noor Anand
                       and Mr. Rupinder Pal Singh, Advocates

                  versus

NATIONAL COMMISSION FOR SCHEDULED CASTES
& ANR.                                  .... Respondents
                  Through: Mr. Sanjay Kumar Visen, Advocate
                  with Mr. Shyam Sunder Jindal and
                  Mr. G.P.Singh, Advocates


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (ORAL)

1. The present petition has been filed by the petitioner/UOI,

Ministry of Health and Family Welfare praying inter alia for quashing of

the order dated 05.08.2014 passed by the respondent No.1/National

Commission for Scheduled Castes.

2. By the impugned order dated 05.08.2014, the respondent

No.1/Commission has disposed of a complaint dated 05.10.2009 filed

by the respondent No.2, seeking the following reliefs:-

"1. Department should withdraw their show cause notice issued on arbitrary grounds or accept my reply as was accepted previously.

2. Considering the equality parameter, my post should be re- designated as Research Officer since 1-1-1996.

3. I may be promoted as Assistant Advisor w.e.f. 1-1-2000, Deputy Advisor w.e.f. 1-1-2005 and my arrear should be paid with interest accordingly.

4. I may be suitably financially compensated for the mental, physical and social harassment which I am facing since 2002 till date and responsibility should also be fixed of those officers who harassed me and punish them suitably.

5. My pay in corresponding scale as per 6th CPC be given, notification be issued immediately and subsequently by giving me the promotion as Deputy Advisor accordingly from due date."

3. By the impugned order, the respondent No.1/Commission has

opined that the pay scale of the respondent No.2 ought to be upgraded

to `8000-13500 w.e.f. 1996 with all consequential benefits of arrears

of pay and allowance, promotions and career progression within a

period of fortnight. Further, the respondent No.1/Commission has

named four officials, who have allegedly committed atrocities towards

the respondent No.2 and thus attracted the provisions of Section 2 of

the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989 (hereinafter referred to as 'the Act') and are liable for

punishment under Section 3 of the Act.

4. Mr. Sanjay Jain, learned ASG assails the impugned order mainly

on two counts. Firstly, he submits that despite repeated orders passed

by the Supreme Court and the High Courts holding inter alia that the

Commission has powers of a civil court limited only to investigate any

matter referred to in sub-clause (a) or inquire into any complaint

referred to in sub-clause (b) of clause 5 of Article 138 of the

Constitution of India and that it does not have the power to examine

matters pertaining to service jurisdiction, the impugned order has

been passed by the court in favour of the respondent No.2 directing

that his pay scale be upgraded retrospectively w.e.f 1996 with all

consequential benefits and arrears of pay and allowances, promotions

and career progression, within a fortnight. To substantiate the

aforesaid submission, reliance has been placed on the decision of the

Supreme Court in the case of All India Indian Overseas Bank SC & ST

Employees Welfare Association and Ors. Vs. UOI and Ors. reported as

(1996) 6 SCC 606.

5. Secondly, it is submitted by learned ASG that the orders passed

by the respondent No.1/Commission indicting four officers working on

different posts in the Department of Ayush under Sections 2 and 3 of

the Act, are liable to be quashed as the respondent No.2 did not name

any of the said individuals in his complaint dated 05.10.2009.

Moreover, he points out that none of the four officers were afforded an

opportunity of hearing by the Commission before the said order came

to be passed thus violating the principles of natural justice, particularly

since the consequences of attracting the provisions of Sections 2 and 3

of the Act are grave in nature and are punishable with imprisonment

which shall not be less than six months, but which may extend to five

years and with fine.

6. Mr. Jain, learned ASG submits on facts that much before the

respondent No.2 had approached the respondent No.1/Commission

with a complaint, in the year 2002, he alongwith some other applicants

had approached the Central Administrative Tribunal by filing OA

No.3194/2002 for relief pertaining to their scales of pay. On

31.07.2003, the Tribunal had quashed the order dated 29.11.2002

passed by the Department and restored the pay scale of the

respondent No.2 with directions issued to the Department to pass a

fresh order. On 18.08.2003, the Department had issued a fresh notice

to show cause to the respondent No.2. In the year 2003 itself, the

respondent No.2 had filed another petition before the Tribunal stating

inter alia that no action had been taken by the Ministry despite the

order dated 29.11.2002. Vide order dated 21.01.2004, the Tribunal

had observed that as the Department had not taken any decision after

issuing a notice to show cause to the respondent No.2, he would

continue to remain in the pay scale of `8,000-13,500.

7. A third round of litigation was initiated by the respondent No.2 in

the year 2010 when he filed a petition before the Tribunal praying inter

alia that he be granted enhanced pay scale. Vide order dated

16.01.2012, the aforesaid petition was disposed of by the Tribunal

with directions to the Department to take the show cause notice dated

18.08.2003 to its logical conclusion, with liberty granted to the

respondent No.2 to seek his remedies against the decision taken, if it

is adverse to him.

8. Finally, on 04.04.2012, the Department passed a speaking order

withdrawing the scale of pay of `8,000-13,500 (pre-revised) etc.

granted to the respondent No.2. Aggrieved by the aforesaid decision,

the respondent No.2 filed another petition before the Tribunal

challenging the order dated 04.04.2012. The said petition was

dismissed by the Tribunal on 06.03.2013, whereafter the respondent

No.2 proceeded to file a review application, which is stated to be

pending adjudication and the next date of hearing is 21.11.2014.

9. In the meantime, without taking notice of the fact that the

respondent No.2 has already sought his legal remedies against the

order dated 04.04.2012 passed by the petitioner/UOI and further, that

the respondent No.2 has filed a review application against the order

dated 06.03.2013 passed by the Tribunal which is pending

consideration before the same forum, the impugned order dated

05.08.2014 has been passed by the respondent No.1/Commission.

10. Learned counsel for the respondent No.2 who appears on

advance copy, states that his client does not wish to press the relief

granted to him by the Commission with regard to upgradation of his

pay scales as the review application filed by him for review of the

order dated 06.03.2013 is pending consideration before the Tribunal.

This takes care of the first grievance of the petitioner/UOI.

11. Coming next to the adverse findings returned by the respondent

No.1/Commission against the four officers mentioned in the second but

last para of the impugned order, a perusal of the complaint filed by the

respondent No.2 before the Commission reveals that none of the said

officers were named therein. The only reference made in the

complaint is to one Mr. Lakhanpal, Under Secretary (Est.I), who had

allegedly harassed the respondent No.2. The rest of the averments

made in the complaint refers to the sequence of events narrated by

the respondent No.2, wherein he mentions various officers by their

designation, without mentioning the names of the incumbents or

levelling specific allegations of harassment against them. Learned

Counsel for the respondent No.2 has been specifically asked if any

affidavit had been filed by the respondent No.2 in respect of the four

officers or any documents had been placed before the Commission

relating to the conduct of the said officers amounting to committing

atrocities against him before the impugned order came to be passed

against them, to which the reply is in the negative. Further, learned

counsel for the respondent No.2 is unable to state as to whether

notices to show cause were issued to each of the four officers affording

them an opportunity to explain their stand before the impugned order

came to be passed against them.

12. In the given circumstances, this Court is of the opinion that the

impugned order dated 05.08.2014, whereunder four officers working

on different posts in the Department of Ayush have been indicted for

committing atrocities against the respondent No.2 under Sections 2

and 3 of the Act, is unsustainable. The principles of natural justice

demanded that the said officers ought to have been issued notices to

show cause so as to afford them a reasonable opportunity of

presenting their stand and of hearing them so as to enable them to

meet the allegations levelled against them by the respondent No.2,

before any order, particularly one having such grave ramifications

could have been passed, holding them guilty of committing atrocities

against the respondent No.2 and making them liable for punishment

with imprisonment and fine.

13. As a result, the present petition is allowed and the impugned

order dated 05.08.2014 is quashed and set aside. However, the

respondent No.2 is granted leave to pursue the review application filed

by him and pending before the Tribunal. If he is aggrieved by the

order that may be passed by the Tribunal, he shall be entitled to seek

his remedies before the appropriate forum in accordance with law.

14. Further, if the respondent No.2 does have a grievance against

any individual officer of the Department, which as per him would

attract the provisions of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989, it is for him to file a complaint and

make specific allegations therein, backed by relevant facts in respect

of the said officer for seeking the relief as was prayed for by him in

prayer clause (4) of his complaint dated 5.10.2009.

15. The petition is disposed of.

(HIMA KOHLI) JUDGE SEPTEMBER 29, 2014 rkb/mk