KC - {Name Redacted} vs National Commission For Women & ...
2016 Latest Caselaw 2503 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of decision: 31st March, 2016.

+              W.P.(C) No. 7359/2014 & CM No.17214/2014 (for stay)

       KC - {Name Redacted}                                              ..... Petitioner
                  Through:                Ms. Nandita Rao, Adv.

                                   Versus

    NATIONAL COMMISSION FOR WOMEN
    & ANR                                   .......Respondents

Through: Mr. Jasmeet Singh, CGSC and Ms. Astha Sharma, Adv. for R-1.

Mr. Aditya Dewan, Adv. for R-2.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This petition under Article 226 of the Constitution of India seeks

mandamus to the respondent No.1 National Commission for Women (NCW)

to recall its advisory dated 14th June, 2013 and seeks compensation in the

sum of Rs.75,49,958/- jointly and severally from the respondent No.1 NCW

and respondent No.2 Ms. DS - {Name Redacted}.

2. The petition was filed pleading:

(i) that the respondent No.2 Ms. DS - {Name Redacted} is the wife of the

petitioner;

(ii) that the petitioner is a Marine Engineer and was, at the time of

his marriage and thereafter employed with Mitsui O.S.K. Lines

Maritime (Indian) Pvt. Ltd.;

(iii) that disputes and differences arose between the petitioner and

the respondent No.2 Ms. DS - {Name Redacted} and the respondent No.2 Ms.

DS - {Name Redacted} filed a complaint against the petitioner with the Special

Unit of Women and Child of Crime Against Women (CAW) Cell of

Delhi Police which issued notice to the petitioner;

(iv) that the respondent No.2 Ms. DS - {Name Redacted} also filed a petition

in the District Court at Saket, New Delhi against the petitioner under

the Protection of Women from Domestic Violence Act, 2005;

(v) that the respondent No.2 Ms. DS - {Name Redacted} using her clout as a

Consultant to the National Mission for Empowerment of Women

under the Ministry of Women and Child Development filed a

complaint with the respondent No.1 NCW and the respondent No.1

NCW ignoring the fact that the CAW Cell of Delhi Police and the

District Court at Saket were seized of the disputes between the parties

and further ignoring the fact that all the properties of the petitioner are

in India and without complying with the principles of natural justice

and giving the petitioner an opportunity of hearing, issued the

impugned advisory dated 14th June, 2013 to the High Commission of

India in Singapore, directing them to advise the employer of the

petitioner not to post the petitioner outside India and with a copy to

the employer of the petitioner;

(vi) that as a direct consequence of the aforesaid advisory, the

petitioner‟s employer aforesaid discontinued the services of the

petitioner vide their email dated 24th June, 2013, making the petitioner

unemployed;

(vii) that though the petitioner represented to the respondent No.1

NCW to withdraw their advisory but to no avail;

(viii) that finally the respondent No.1 NCW in response to

information sought by the petitioner under the Right to Information

Act, 2005 (RTI Act) furnished to the petitioner the complaint made by

the respondent No.2 Ms. DS - {Name Redacted} and whereupon the advisory

aforesaid had been issued;

(ix) that the District Court, Saket and the CAW Cell of Delhi Police

have concluded that the respondent No.2 Ms. DS - {Name Redacted} had taken

forcible possession of the petitioner‟s property in Noida, U.P.;

(x) that owing to the illegal acts of the respondents, the petitioner

has suffered loss.

3. The petition came up before this Court first on 31st October, 2014,

when while issuing notice thereof, it was prima facie observed that the action

of the respondent No.1 NCW of communicating directly with the employer

of the petitioner was an abuse of authority by the respondent No.1 NCW and

respondent No.1 NCW directed to consider withdrawing the letter dated 14th

June, 2013.

4. However, notwithstanding the aforesaid opportunity, the respondent

No.1 NCW did not withdraw the said advisory; this Court vide order dated

4th December, 2014, expressing a prima facie opinion that the authority of

the respondent No.1 NCW extended only to taking up matters with the

appropriate authorities in accordance with law and that the respondent No.1

NCW in issuing the impugned advisory had acted beyond the scope of its

authority, stayed the operation of the impugned advisory till the disposal of

the petition.

5. Counter affidavits have been filed by the respondents and to which

rejoinders have been filed by the petitioner.

6. The counsel for the respondent No.1 NCW on 27th April, 2015

informed that the complaint of the respondent No.2 Ms. DS - {Name Redacted} had

been closed by the respondent No.1 NCW. Taking note of the same, it was

observed that therewith the challenge in the petition to the advisory stood

satisfied and the respondent No.1 NCW was directed to write to the Indian

High Commission in Singapore about having closed the complaint and

having withdrawn the advisory.

7. The counsels for the parties were heard on 30 th September, 2015 and

judgment reserved and permission sought to file written submissions

granted. The written submissions have been filed and perused.

8. Though in the manner aforesaid, the relief sought in the petition qua

the advisory dated 14th June, 2013 does not survive and only the claim of

petitioner for compensation is to be considered but I may notice:

(A) That the respondent No.1 NCW, neither in its counter affidavit

nor during the hearing nor in its written submissions, has referred to

any of the provisions of the National Commission for Women Act,

1990 (NCW Act) under which the respondent No.1 NCW has been

constituted and acting whereunder the impugned advisory was issued,

which authorised / empowered it to issue the same.

(B) NCW, being a statutory body, cannot claim or exercise any

inherent powers and can exercise only such powers as are prescribed

in the statute creating it, to be exercised by it; this Court in Bhupinder

Singh Vs. Delhi Commission for Women 137 (2007) DLT 411 held

that the Delhi Commission for Women constituted under the Delhi

Commission for Women Act, 1994 had no power for issuing any

direction for payment of maintenance - it was observed that though

the Commission had been vested with all the powers of a Civil Court

in carrying out investigation relating to safeguards provided for

women under the Constitution and other laws as also with regard to

matters relating to deprivation of women‟s rights but in the absence of

any power to pass order or direction for maintenance, the same could

not be inferred. It was observed that powers to grant interim orders

are vested in the Courts only.

(C) Section 10 of the NCW Act prescribes the functions, to perform

which, NCW has been created. The said functions, except for those

enumerated in Clause (f) of Sub-section (1) of Section 10, do not

pertain to adjudication of complaints / claims of women in individual

cases; they pertain to issues of women in general. Though Clause (f)

of Sub-section (1) of Section 10 of the NCW Act makes it a function

of the respondent No.1 NCW, to inter alia look into complaints

relating to deprivation of women‟s rights aimed at mitigating

hardships and ensuring welfare and providing relief to women but

only to take up the issues arising therefrom with the appropriate

authorities. Under the said provision also, the respondent No.1 NCW

has not been authorised to become a Judge or an Arbiter in the

individual complaints of women. The same authorises NCW to, on a

complaint, take up the issues arising therefrom with the appropriate

authorities. The expression „appropriate authorities‟, in my opinion,

refers to authorities entrusted with the protection of women‟s rights

and implementation of laws or to resolve the issue in general arising

from the complaint. The same also does not empower NCW to

approach any authority or person or office as an agent of the

complaining woman and issue directions thereto. It cannot be lost

sight of that the respondent No.1 NCW being a statutory body, it‟s

direction or advisory would carry much more weight than a

complaint, if were to be directly made by the aggrieved woman. That

is what appears to have happened in the present case. The impugned

advisory on the letterhead of the respondent No.1 NCW to the High

Commission of India in Singapore with copy to the employer of the

petitioner has been acted upon, resulting in the petitioner losing his

employment. In my opinion, no provision of Section 10 of the NCW

Act empowers the respondent No.1 NCW to take such an action.

(D) This Court in Vikram Sharma Vs. Union of India 171 (2010)

DLT 671 relied upon by the counsel for the petitioner held the action

of NCW, in that case of writing to the authorities for issuance of

Look-out Circular against the petitioner in that case, to be without the

authority of law and burdened NCW with compensation of

Rs.20,000/- and to ensure that such actions do not recur, directed

NCW to take steps in that regard. However, it appears that the

judgment aforesaid of this Court in Vikram Sharma has had no

impact on the respondent No.1 NCW.

(E) NCW, in its counter affidavit has however sought to draw

authority for its action impugned in this petition from the letter dated

28th April, 2009 of the Ministry of Overseas Indian Affairs,

Government of India. Vide the said letter, NCW was appointed as "the

co-ordinating agency at the national level, to receive and process all

the complaints related to Indian women deserted by their overseas

Indian husbands", in pursuance to the recommendation of the

Parliamentary Committee on Empowerment of Women (14th Lok

Sabha) on the "Plight of Indian Woman deserted by NRI husbands", to

evolve a well defined / co-ordinated mechanism to deal with the issue

of problematic NRI marriages to enable the women to get respectable

solution to the problem. (I may notice that Section 10(1)(n) of the

NCW Act empowers the NCW to perform any other function which

may be referred to it by the Central Government). It is the stand of

NCW in its counter affidavit that upon the respondent No.2

complaining to its NRI Cell expressing apprehension that the

petitioner will attempt to get a posting outside India so as to avoid

resolving the matrimonial dispute and leaving her in distress, it was of

the "prima facie" view that in order to give justice to complaint made

by the respondent No.2, the petitioner should be available in India and

thus issued the impugned letter dated 14th June, 2013.

(F) I am afraid the NCW is misconstruing its functions in pursuance

to letter dated 28th April, 2009 of the Ministry of Overseas Indian

Affairs. The same also appoints NCW only as a co-ordinating agency

at national level and does not, as indeed it cannot, empower NCW to

„on a prima facie view‟ or for that matter take a final view on

complaints received by it as to which of the warring spouses is at fault

and to use it‟s clout to inflict punishment on the spouse which

according to it is at fault. The role of NCW as a co-ordinating agency

is only to ensure that the women in distress are guided to "appropriate

agencies/authorities" empowered and constituted to take action on

their complaints and such agencies act on the complaint and that the

orders/directions issued by such agencies/authorities are in turn

implemented by other agencies/authorities empowered

/constituted/required to implement the same. The need for appointing

such a co-ordinating agency at national level was felt, as the

respondent No.1 NCW in its counter affidavit admits, owing to

technical difficulties being faced by such women in serving court

notices, process, orders outside the country and to assist the women in

the same. However NCW appears to have abrogated to itself the task

of the judge as well as of executing its own decisions and which it is

not entitled to. All that the NCW, on receipt of complaint from the

respondent No.2, could have done is to advise the respondent No.2 to

approach the police/court empowered to compel the presence of the

petitioner and to ensure that the police considered the

application/representation of the respondent No.2 in accordance with

law and/or to direct the petitioner to other governmental agencies

empowered to pass orders permitting the petitioner to remain abroad

and to file objections to grant of such permission if any to petitioner

and to ensure that orders passed by appropriate authorities are served

on the petitioner and implemented, again by agencies empowered in

law to implement them. Instead, NCW chose to adopt a procedure not

sanctioned in law. It cannot be forgotten that the petitioner is not an

overseas citizen but holding Indian passport and procedure exists in

law for compelling return of such person to India. The apprehensions

of respondent No.2 on which NCW acted thus had no basis and appear

to be guided by desire to cause harm to the petitioner and in which

NCW appears to have played along.

(G). This becomes further obvious from the respondent No.1 NCW

having not even pursued the complaint of the respondent No.2 Ms.

DS - {Name Redacted} or taken it to its logical conclusion and having closed

the same after, „on a prima facie view‟, causing damage to the

petitioner.

(H) In this regard, the averment of the petitioner of the respondent

No.2 Ms. DS - {Name Redacted} at the relevant time working as a Consultant to

the National Mission for Empowerment of Women under the Ministry

of Women and Child Development and which averment has not been

disputed by the respondent No.2 Ms. DS - {Name Redacted} becomes relevant.

The possibility of misuse of such position by the respondent No.2 Ms.

DS - {Name Redacted} cannot be ruled out.

(I). The respondent No.1 NCW vide the impugned advisory dated

14th June, 2013 directed the High Commission of India in Singapore to

take up the matter with the employer of the petitioner, so that the

petitioner should not be posted to any foreign country, until he

resolves his matrimonial dispute with the respondent No.2 Ms. DS - {Name Redacted}. There is on record a response dated 16th July, 2013 of the High

Commission of India in Singapore to the respondent No.1 NCW to the

effect that it would be beyond its jurisdiction to force the employer of

the petitioner to deny employment to the petitioner or to terminate the

employment of the petitioner. The counsels for the respondents

during the hearing also were unable to cite the authority of the High

Commission of India in Singapore to take such an action. The law by

which the respondent No.1 NCW has been constituted does not

empower the respondent No.1 NCW to do so. It is not understandable,

as to how the respondent No.1 NCW expected the High Commission

of India in Singapore to exercise the power which it had directed. The

only reason could be to do indirectly what could not be done directly,

by making a copy of the letter directly to the employer of the

petitioner.

(J) The action of the respondent No.1 NCW in the present case is

clearly found to be illegal, beyond its jurisdiction and perhaps guided

by the office which the respondent No.2 Ms. DS - {Name Redacted} was at the

relevant time occupying.

9. I have devoted considerable time to the issue in the hope that the

respondent No.1 NCW would not, in future, act beyond its jurisdiction. The

respondent No.1 NCW does not appear to have given requisite heed to the

judgments aforesaid of this Court. Else, after the dicta in Vikram Sharma

and Bhupinder Singh supra, the respondent No.1 NCW should have been

cautioned and not acted as it did in issuing the advisory.

10. While on the subject, mention may also be made of certain other

judgments dealing with the subject.

11. This Court in U.S. Verma, Principal and Delhi Public School Society

Vs. National Commission for Women 163 (2009) DLT 557 held i) that

NCW was conceived of and functions as a national level body primarily

looking into the policy issues, to highlight them and recommend the

appropriate measures to the governments concerned; ii) it cannot, in

principle, look into individual issues unless they pose or concern a wider

policy or legislative structural dilemma which requires to be addressed; iii)

the findings or recommendations of NCW are of little or no evidentiary

value and do not amount to substantive evidence in judicial proceedings; iv)

it‟s investigations are to be exerted towards broad policy issues and

concerns, advising or recommending the appropriate government or agencies

of the best practices aimed at addressing a broad range of gender related

concerns; and, v) NCW cannot look into the material and examine witnesses

to decide whether the allegations made in a complaint are well founded or

not and cannot return factual findings drawn.

12. Supreme Court in Bhabani Prasad Jena Vs. Convenor Secretary,

Orissa State Commission for Women (2010) 8 SCC 633 was concerned

with the power of State Commission for Women constituted under the Orissa

(State) Commission for Women Act, 1993. It was held that the said

Commission was broadly assigned the role of i) taking up studies on issues

of economic, educational and healthcare that may help in overall

development of women of the State; ii) to gather statistics concerning

offences against women; iii) probe into complaints relating to atrocities on

women, deprivation of women of their rights and upon ascertainment of facts

take up the matter with the concerned authorities for remedial measures; and,

iv) to help women in distress as a friend, philosopher and guide in

enforcement of their legal rights. However no power or authority has been

given to the State Commission to adjudicate or determine the rights of the

parties. It was further held that the power conferred on the State

Commission to receive complaints and to take up the matter with the

authorities concerned for appropriate remedial measures did not entrust the

State Commission with the power to take up the role of a Court or an

adjudicatory Tribunal and determine the rights of the parties. It was yet

further held that the conferment of the powers of a Civil Court on the State

Commission did not give jurisdiction to the State Commission to make an

order as made in that case, of payment of maintenance and direction for

conduct of a DNA test and which was held to be beyond the competence of

the State Commission.

13. A Division Bench of the High Court of Bombay in KPMG India Pvt.

Ltd. Vs. National Commission for Women MANU/MH/1256/2014 has also

held that the NCW cannot arrive at a conclusion or grant relief though can

make recommendations on the basis of such facts in the larger interest of

women. It was held that NCW has no jurisdiction to determine whether or

not there was an unfair dismissal or demand a letter of apology or direct

payment of compensation or grant relief by way of ordering payment of

bonus. It was reiterated that NCW functions in a recommendatory capacity

and is not an adjudicatory body and the provisions of Section 10(4) of the

NCW Act investing NCW with powers of a Civil Court do not entitle it to

arrive at findings of fact or to arrive at final conclusions or grant reliefs that a

Civil or Criminal Court can.

14. I will be failing in my duty if do not mention another judgment of this

Court in Dr. Anil Seth Vs. Delhi Commission for Women

MANU/DE/2731/2010 which appears to take a different stand inspite of

noticing U.S. Verma, Principal and Delhi Public School Society supra but

without noticing the dicta of the Supreme Court in Bhabani Prasad Jena

supra However in the light of the otherwise consistent judgments supra, the

same cannot be said to be laying down good law.

15. However, as far as the claim of the petitioner for damages is

concerned, though the counsel for the petitioner has referred to, (i) Vikram

Sharma supra; (ii) Chairman, Railway Board Vs. Chandrima Das (2000) 2

SCC 465; and, (iii) M.S. Grewal Vs. Deep Chand Sood (2001) 8 SCC 151 in

this respect to contend that compensation can be awarded in writ jurisdiction

but considering that the present is essentially a matrimonial dispute, I do not

find it to be a fit case for award of damages / compensation in writ

jurisdiction. However, since the respondent No.1 NCW, notwithstanding the

earlier judgments has acted beyond its jurisdiction, I deem it appropriate to

award costs of this petition of Rs.30,000/- to the petitioner payable by the

respondent No.1 NCW within four weeks of today.

16. The petition is allowed to the aforesaid extent with liberty to the

petitioner to, in accordance with law, pursue the claim for damages /

compensation which has not been entertained for the reasons aforesaid.

RAJIV SAHAI ENDLAW, J.

MARCH 31, 2016 „bs‟..