Sr. Canisius D.M. The Mother ... vs District Collector
2021 Latest Caselaw 9195 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

     FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942

                      WP(C).No.31050 OF 2012(E)


PETITIONER:

               SR. CANISIUS D.M. THE MOTHER SUPERIOR
               AGED 70 YEARS
               ST.JOSEPH SAI MATHA ORPHANAGE, MOONNANMOODU,
               KODUNGANOOR P.O., THIRUVANANTHAPURAM.

               BY ADVS.
               SRI.P.SANJAY
               SMT.A.PARVATHI MENON

RESPONDENTS:

      1        DISTRICT COLLECTOR
               THIRUVANANTHAPURAM, PIN 695001.

      2        THE COMMISSION FOR PROTECTION OF CHILD RIGHTS
               5TH FLOOR, CHANDERLOK BUILDING, 36, JANPATH,
               NEW DELHI-110001, REPRESENTED BY ITS SECRETARY.

      3        THE CHAIRPERSON
               COMMISSION FOR PROTECTION OF CHILD RIGHTS, 5TH FLOOR,
               CHANDERLOCK BUILDING, 36, JANAPATH, NEW DELHI-110001.

      4        DR.YOGESH DUBE
               MEMBER, COMMISSION FOR PROTECTION OF CHILD RIGHTS,
               5TH FLOOR, CHANDERLOK BUILDING, 36, JANAPATH, NEW
               DELHI 110001.

      ADDL.     MARY STELLA
      R5.      ULAVATHU IDAPPARAMBIL HOUSE, MATTOM SOUTH,
               THATTARAMBALAM, KANNAMANGALAM VILLAGE, MAVELIKKARA
               TALUK, ALAPPUZHA DISTRICT.

               (ADDITIONAL R5 IS SUO MOTU IMPLEADED AS PER ORDER
               DATED 08/06/2018)



               R1- SRI.SURIN GEORGE IPE,SENIOR GOVERNMENT PLEADER
                   SMT.GIRIJA GOPAL, AMICUS CURAIE

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD           ON
19.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.31050 OF 2012(E)                   2




                                                                       CR


                                  JUDGMENT

Dated this the 19th day of March 2021

This writ petition is filed challenging Exhibits P1 & P2 orders passed by

the District Collector, Thiruvananthapuram, dated 6.11.2012, and the Member,

National Commission for Protection of Child Rights, dated 28.9.2012,

addressed to the District Collector, Thiruvananthapuram, to take action

against St.Joseph Sai Matha Orphanage, Moonnanamoodu, Kodunganoor,

Thiruvananthapuram and to file an action taken report before the National

Commission within 20 days of receipt of the letter. The subject issue arose

under the provisions of the Commissions for Protection of Child Rights Act,

2005, hereinafter called, 'Act, 2005'.

2. Brief material facts for the disposal of the writ petition are as follows;

petitioner is the Mother Superior-in-Charge of "Sisters of Mary", conducting an

orphanage for girl children in Thiruvananthapuram for the last several years

and has around 100 destitute and orphan children, who are provided not only

a place to stay, but also education, including higher education in the areas of

interest of the children to enable them to get employment and make their own

career. Grievance of the petitioner is that the District Collector,

Thiruvananthapuram, in purported compliance of Ext P2 order passed by the

4th respondent viz., Dr.Yogesh Dube, then Member, Commission for Protection

of Child Rights, New Delhi, issued Exhibit P1 order directing to provide financial

assistance to the victim child for inflicting mental and physical injury .

According to the petitioner, the 4th respondent is not empowered to issue any

orders behind the back of the petitioner to the District Collector under the

provisions of the Act, 2005. It is the specific case of the petitioner that the

National Commission has not issued any notice to the petitioner on the basis of

any complaint or conducted any inquiry as contemplated under sections 14 &

15 of the Act, 2005 and the rules thereto, under which act the National

Commission was constituted.

3. The legal contention advanced is that, the Commission comprises 6

members and the decisions are signed by the Member Secretary as provided

under rules 17, 18 & 19 of National Commission for Protection of Child Rights

Rules, 2006, hereinafter called, 'Rules, 2006'. It is also submitted that even

though the petitioner attempted to convince the District Collector,

Thiruvananthapuram, with respect to the inadequacy of the procedure and

illegality of the order, the District Collector was not prepared to listen to the

petitioner and therefore, petitioner had no other option than to approach this

Court by filing this writ petition.

4. The District Collector, Thiruvananthapuram, has filed a detailed

counter affidavit submitting that the District Probation Officer, Alappuzha

submitted a detailed report after enquiring the matter, vide letter dated

14.12.2013. In the report, the District Probation Officer, has found that the

victim child is the eldest daughter of Mr.John Thomas (late) and Mrs.Mary

Stella and they lived in Vizhinjam, Thiruvananthapuram District, with the

younger child viz., Shefrin Mary John. Mr. John Thomas died about Six years

ago and after his death, the life of the family plunged into utter poverty.

Hence, Mrs.Mary Stella sent the victim child, to St.Joseph Sai Matha

Orphanage, Moonnammoodu, Kodunganoor, Thiruvananthapuram District,

hoping that the child would get proper food, education, care and protection at

free of cost. But as per the report of the District Probation Officer, Alappuzha,

the Orphanage authorities tortured the child unnecessarily and forced her to

sweep the rooms, cleaning the wash basins, bath rooms and waste plates. One

day, a sister and a worker burned her chest across with a heated iron rod and

threatened her not to tell the incident to anybody and without giving proper

treatment, the Orphanage Authorities telephoned the child's mother and asked

her to take the child back to her home. So, the mother immediately took the

child and was admitted to the Government Hospital. After that incident,

Mrs.Mary Stella along with her two daughters shifted their residence to

Mavelikkara and now they are living with the elder brother of Mrs.Mary Stella in

a rented house.

5. As per the report of the District Probation Officer, Alappuzha, the child

was then studying in the 3rd standard in St. John's English Medium School,

Mavelikkara. The District Probation Officer, Alappuzha, recommended that

necessary steps be taken to rehabilitate the family by providing financial aid

and accordingly proper action has to be initiated against the Orphanage

Authorities to avoid such inhumane incidents in future.

6. It is also submitted that on the basis of the report of the District

Probation Officer, Alappuzha, the District Collector submitted a report to the

National Commission for Protection of Child Rights and recommended to

initiate proper action as per law against St.Joseph Sai matha Orphanage,

Moonnammoodu, Kodunganoor, Thiruvananthapuram, to prevent such

incidents in future, vide letter dated 15.09.2012. As per letter dated

01.10.2012, the National Commission for Protection of Child Rights observed

that, the act of torturing of a 6 year old girl child by St. Joseph Sai Matha

Orphanage staffs is a gross violation of Juvenile Justice (Care and protection of

Children) Act, 2000 and that kind of incident is unbelievable and unacceptable

in society coming from an orphanage, where young tender children stay for

care and protection. For preventing such inhumane incident from happening in

future, three actions are recommended by the Commissioner i.e.,

(1) Immediate suspension of the staff and sister, who are responsible for abuse

of children (2) Conducting a detailed investigation about the Orphanage and

(3) the child should be compensated monetarily by the management of the

Orphanage for that grave incident, as early as possible. The Commission

instructed to send an action taken report in the recommendations.

7. On the basis of the recommendations of the Commission, the District

Collector has instructed the Mother Superior of the St. Joseph Sai Matha

Orphanage to take immediate action for suspending the staff and sister

responsible for the incident and to give monetary benefit to the girl as

recommended by the Commission, within one week, vide Exhibit P1. The

Tahsildar,Thiruvananthapuram and Sub Inspector of Police, Vattiyoorkavu, were

also instructed to ensure that the above instructions are implemented. The

District Collector also reported to the Social Welfare Department Government

of Kerala about the issue. As per the 2 nd recommendation of the Commission,

the District Police Chief, Thiruvananthapuram City, was instructed to register a

case against the Orphanage and conduct a detailed enquiry about the

institution. The Tahsildar, Thiruvananthapuram, reported vide letter No. G5-

76496/2012 dated 17.11.2012 that the sister responsible for the incident is

Sr.Canisius, who is the Sister-in-Charge of the Orphanage, and the staff

responsible for the incident was not working then in the Institution and any

monetary benefits had not been given to the child by the Orphanage

authorities. The District Collector reported the action taken in the matter to the

commission vide letter dated 26.12.2012. Against the said action, the sister-in-

charge of the Orphanage then filed the instant Writ Petition.

8. It is further submitted that after detailed enquiry, the District Probation

officer had reported that the 1st respondent is responsible to obey the

commendations of the Commission for protection of child rights and acted as the

implementing authority of the National Commission. The report of the District

Probation Officer, Alappuzha, is clear and self explanatory. On receipt of the

recommendations, the application submitted by the Mother Superior to the 1 st

respondent dated 29.11.2012, against the decision of the Commission, was

forwarded to the Commission for taking necessary action vide letter No.

39-40609/12 dated 26.12.2012.

9. The Commission for Protection of Child Rights, the Chairperson as well

as the Member, who has issued Exhibit P2 notice, have jointly filed a counter

affidavit refuting the allegations and claims and demands raised by the petitioner

and the allegations made against the Member, who has issued Exhibit P2

impugned order.

10. According to the respondents, 2 nd respondent received a complaint

dated 5.10.2009 on 16.10.2009 from the Human Rights Observers, New Delhi,

evident from Ext R2(a) and pursuant to which, the 2 nd respondent took

cognizance under section 13(1)(j) of Act, 2005 and forwarded the same to the

1st respondent for investigation/inquiry and to take further necessary action.

Exhibit R2(b) is the copy of the forwarding letter issued by the Registrar of the

National Commission. It is further submitted that the District Collector,

Thiruvananthapuram, was requested to send a factual report along with the

authenticated copies of the relevant documents within 30 days of the issue of

the said letter. It is further pointed out that, since there was no reply, reminders

were issued and finally Exhibit R2(g) report was submitted by the 1 st respondent

dated 15.9.2012 based on the inquiry conducted by the District Probation Officer,

Alappuzha, by which it was reported that one girl child, was tortured and

consequent to which, the child has suffered mental as well as physical injuries.

11. The case of the respondents 2 to 4 is that on the basis of Exhibit R2(g)

inquiry report received from the Collector, the 2 nd respondent in accordance with

the provisions contained under Act, 2005, has directed the District Collector,

Thiruvananthapuram, to take action and therefore, the entire proceedings of the

4th respondent was on the basis of adequate deliberation with the National

Commission and therefore, there is no factual or legal basis for the contentions

put forth by the petitioner.

12. Anyhow taking into account the seriousness of the matter, a learned

Single Judge of this Court, has appointed Adv.Girija K.Gopal as Amicus Curiae,

in order to submit a report before the court so as to identify the veracity and

truth of the mental and physical injuries inflicted on the girl child. The report

of the Amicus Curiae reads thus:

"2. On being informed by the learned Government Pleader that on enquiries it is understood that the minor girl Shifra Mary John is, at present, a student St. Johns High School, Pathichira, I visited her at the school on 28.9.2018 with prior intimation to the Headmistress, Smt. Sheeba Varghese.

3. The Headmistress provided me with a room from where I could interact with the child in isolation.

4. Though Shifra Mary John seemed to be initially surprised as to why she was called individually, when the purpose of my visit was made explicit, she became affable within minutes and had no reluctance to open up. She expressed that though she doesn't remember the name of the institution from where the alleged incident had taken place, she has memories of having been subjected to humiliation in a convent at Trivandrum at a very young age. On being asked as

to whether she could recollect the incident, she was not able to furnish details with exactitude. All that she could remember was that she was inflicted with burns with a rod at the convent in Thiruvananthapuram. She was not able to furnish details with exactitude. All that she could remember was that she was inflicted with burns with a rod at the convent in Thiruvananthapuram. She was but not able to specifically name the institution or the persons involved in the incident. However, she added to say that a nun, who was addressed as 'Kanya sister' was the only person who was good to her in that convent and that the injury was inflicted on her by another nun (whose name she couldn't recollect ) and a lady (whose name also could not be recollected ).

5. To reassure myself as to whether the injury has left any scars on the body of the girl, when I requested Shifra to kindly show me the injury inflicted part, if she had no objection for the same, she was very positive to my request and had no delicacy or hesitation in doing so. As stated by her, no scar or burn inflicted injury is visible in her body as of now.

6. After narrating the incident, which she agreed to be a subject matter of discussion often in her mother's conversations, Shifra expressed her feeling that all she wants is that such incidents should not be repeated.

7. Shifra had been very frank enough during her interaction with me and did not hesitate to share family details as well. She disclosed the fact that after being shifted from various schools, she is being admitted in the present school in the 10th standard and that her younger sister is also a student of the same school. She also added to say that since she has lost her father at a young age, her mother Smt. Stella has got re-married to one Mr.Eby, who is conducting an Akshaya Centre at Panachamoodu junction. She also shared with me her mother's phone number and wanted me to visit her at their house, which is very close to St.Johns School.

8. Smt. Stella is now staying in the tharawad house of Mr.Eby, who was also present at the house at the time of my visit. From the attendant surroundings and the state of facts as disclosed by Smt.Stella, I could gather that Smt.Stella and her two girl children are contented and happy at present, especially being under the care and protection of Mr.Eby. Mr.Eby, who is

conducting an Akshaya centre, is also assisting his aged father in his shop. Smt. Stella is also earning her livelihood by running a stitching centre.

9. On being asked about the alleged incident, Smt. Stella reiterated her complaint as reflected in the police records. Though I did notice certain discrepancies in the narrative of the incident by Shifra and Smt.Stella, I refrain myself from stating such details in this report since it would be inappropriate on my part to express any opinion on the same, pending consideration of the criminal case in connection with the same incident.

10. From an overall perspective, I am to opine that Shifra is a smart girl and is happy with her present environment, both at home and school. Financial condition of the house also doesn't appear to be penurious. General disposition of the girl is very pleasant and on being asked as to whether she has any emotional set back on any count, she was very firm to say that she is happy in every respect now and that she does not have any emotional stress attributable to the alleged incident.

11. Files relating to the criminal case were also made available to me by the learned Government Pleader. On enquiry as to the present stage of the criminal case, I was informed that the charge has been read over to the accused.

12. I am to submit that the present family environment of Shifra Mary John appears to be very congenial for her academic and personal growth and that she has no stress or strain attributable to the injury allegedly inflicted on her during her childhood in the convent at Thiruvananthapuram."

13. I have heard counsel for the petitioner Sri.P.Sanjay, learned Senior

Government Pleader Sri.Surin George Ipe, learned Amicus Curiae Smt.Girija

K.Gopal and perused the pleadings and materials on record.

14. On a reading of Exhibit P2 order, what I could gather is that on the

basis of a complaint made by a Delhi based organisation regarding torture of a

six year old girl by the orphanage specified above, the Member of the National

Commission, has recommended the District Collector, Thiruvananthapuram, to

immediately suspend the staff responsible for abuse of the child and a detailed

investigation was also ordered in the functioning of the orphanage, and any

other complaints about the abuse and torture of inmates of the orphanage and

to provide sufficient compensation to the victim child, by the management of

the orphanage for the alleged grave incident, immediately. Apparently, it was

on the basis of Exhibit P2, the District Collector, Thiruvananthapuram, has

issued Exhibit P1 letter to the Mother Superior of the orphanage dated

6.11.2012, directing to implement Exhibit P2 order passed by the National

Commission, within a week and report the matter to the District Collector.

15. Anyhow, in the writ petition, a stay of the proceedings pertaining to

Exhibits P1 and P2 was granted by this Court and it is in force now. The basic

contentions advanced by the petitioner is that Exhibit P2 order passed by the

National Commission is arbitrary and illegal since no opportunity was provided

to the petitioner to contest the proceedings.

16. On a reading of the counter affidavit filed by respondents 2 to 4, it is

clear that when a complaint was received by the National Commission from an

organization in New Delhi, directions were issued to the District Collector,

Thiruvananthapuram, to forward a report after enquiring into the veracity of the

complaint. Apparently, the District Collector, through the officers under the

Act, 2005, conducted an inquiry and forwarded a report to the National

Commission, and in turn the Member of the Commission viz., the 4 th

respondent, has issued Exhibit P2 directions styled as recommendations, by

which the District Collector was forced to take action against the petitioner.

17. As I have pointed out earlier, the function of the National Commission

is guided by section 13,- the powers relating to inquiries is guided by section 14

and steps after inquiry is guided by section 15 of Act, 2005 and they read thus:

"13. Functions of Commission.-(1) The Commission shall perform all or

any of the following functions, namely:-

(a) examine and review the safeguards provided by or under any law for the time being in force for the protection of child rights and recommend measures for their effective implementation;

(b) present to the Central Government, annually and at such other intervals, as the Commission may deem fit, reports upon the working of those safeguards;

(c) inquire into violation of child rights and recommend initiation of proceedings in such cases;

(d) examine all factors that inhibit the enjoyment of rights of children affected by terrorism, communal violence, riots, natural disaster, domestic violence, HIV/AIDS, trafficking, maltreatment, torture and exploitation, pornography and prostitution and recommend appropriate remedial measures;

(e) look into the matters relating to children in need of special care and protection including children in distress, marginalized and disadvantaged children, children in conflict with law, juveniles, children without family and children of prisoners and recommend appropriate remedial measures;

(f) study treaties and other international instruments and undertake periodical review of existing policies, programmes and other activities on child rights and make recommendations for their effective implementation in the best interest of children;

(g) undertake and promote research in the field of child rights;

(h) spread child rights literacy among various sections of the society and

promote awareness of the safeguards available for protection of these rights through publications, the media, seminars and other available means;

(i) inspect or cause to be inspected any juvenile custodial home, or any other place of residence or institution meant for children, under the control of the Central Government or any State Government or any other authority, including any institution run by a social organisation; where children are detained or lodged for the purpose of treatment, reformation or protection and take up with these authorities for remedial action, if found necessary;

(j) inquire into complaints and take suo motu notice of matters relating to,-

(i) deprivation and violation of child rights;

(ii) non-implementation of laws providing for protection and development of children;

(iii) non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships to and ensuring welfare of the children and to provide relief to such children, or take up the issues arising out of such matters with appropriate authorities; and

(k) such other functions as it may consider necessary for the promotion of child rights and any other matter incidental to the above functions.

(2) The commission shall not inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force.

14. Powers relating to inquiries.-(1) The Commission shall, while inquiring into any matter referred to in clause (j) of sub-section (1) of section 13 have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 (5 of 1908) and, in particular, in

respect of the following matters, namely:-

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b)) discovery and production of any document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any court or office; and

(e) issuing commissions for the examination of witnesses or documents.

(2) The Commission shall have the power to forward any case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case has been forwarded to him under section 346 of the Code of Criminal Procedure, 1973 (2 of 1974).

15. Steps after inquiry.-The Commission may take any of the following steps upon the completion of an inquiry held under this Act, namely:-

(i) where the inquiry discloses, the Commission of violation of child rights of a serious nature or contravention of provisions of any law for the time being in force, it may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons;

(ii) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary;

(iii) recommend to the concerned Government or authority for the grant of such interim relief to the victim or the members of his family as the Commission may consider necessary.

The said provisions are supported by rules 17, 18 & 19 of the Rules, 2006 and they read thus:

"17. Functions of the Commission .--The Commission shall, in addition to the functions assigned to it under clauses (a) to (j) of sub-section (1) of section 13, perform the following functions, namely:--

(a) analyse existing law, policy and practice to assess compliance with Convention on the Rights of the Child, undertake inquiries and produce reports on any aspect of policy or practice affecting children and comment on proposed new legislation from a child rights perspective;

(b) present to the Central Government annually and at such other intervals as the Commission may deem fit, reports upon the working of those safeguards;

(c) undertake formal investigations where concern has been expressed either by children themselves or by concerned person on their behalf;

(d) ensure that the work of the Commission is directly informed by the views of children in order to reflect their priorities and perspectives;

(e) promote, respect and serious consideration of the views of children in its work and in that of all Government Departments and Organisations dealing with child;

(f) produce and disseminate information about child rights;

(g) compile and analyse data on children;

(h) promote the incorporation of child rights into the school curriculum, teachers training and training of personnel dealing with children.

18.Procedure for transaction of business .--(1) The Commission shall meet regularly at its office at Delhi at such time as the Chairperson thinks fit, but three months shall not intervene between its last meeting and the next meeting.

(2) The Commission shall ordinarily hold its meetings in its office located in Delhi but may, in its discretion, hold its meetings at any other place in India if it considers it necessary or expedient to do so.

(3) Secretariat assistance. -- The Member-Secretary, along with such officers as the Chairperson may direct, shall attend the meetings of the Commission.

(4)(i) The Member-Secretary shall, in consultation with the Chairperson, prepare the agenda for each meeting of the Commission and shall have notes prepared by the Secretariat and such notes shall, as far as possible, be self-contained;

(ii) The records covering the agenda items shall be made readily available to the Commission for its reference;

(iii) The agenda papers shall ordinarily be circulated to members at least two clear working days in advance of the meeting, except in cases when urgent attention is required.

(5) Four members including the Chairperson shall form the quorum at every meeting of the Commission.

(6) All decisions of the Commission at its meetings shall be taken by majority:

Provided that in the case of equality of votes, the Chairperson, or in his absence the person presiding shall have and exercise a second or a casting vote.

(7) If, for any reason, the Chairperson is unable to attend the meeting of the Commission, any Member chosen by the Members present from amongst themselves at the meeting, shall preside.

19.Minutes of the meeting .--(1) The minutes of each meeting of the Commission shall be recorded during the meeting itself or immediately thereafter by the Member-Secretary or by any other officer of the Commission as directed.

(2) The minutes of meeting of the Commission shall be submitted to the Chairperson for approval and, upon approval, be circulated to all members of the Commission at the earliest and in any case, sufficiently before the commencement of the next meeting.

(3) The conclusions of the Commission in every matter undertaken by it shall be recorded in the form of an opinion and dissenting opinions, if given, shall also form part of and be kept on record. Action shall be taken on the basis of majority opinion where there is any difference of opinion.

(4) All orders and decisions of the Commission shall be authenticated by the Member-Secretary or any other officer of the Commission duly authorised by the Member-Secretary with the prior approval of the Chairperson in this behalf.

(5) Unless specifically authorised, no action shall be taken by the Secretariat of the Commission on the minutes of the meetings until the Chairperson confirms the same.

(6) A master copy of the record of all meetings and opinions of the Commission shall be maintained duly authenticated by the Member-Secretary.

(7) A copy of the minutes pertaining to each item shall be kept in the respective files for appropriate action. Opinions shall be kept in respective records and for convenience, copies thereof with appropriate indexing shall be kept in guard files.

18. On reading of provisions of the Act, 2005 and the Rules, 2006, it is

clear that the entire methodology is provided in regard to the functions of the

commission, the manner in which an inquiry to be conducted, the way in which

decisions are to be taken and the decisions to be drawn and signed by the

Secretary, in accordance with the provisions of the Rules. It is an admitted fact

that no notice was issued to the petitioner before Exhibit P2 recommendations

were made by the member of the National Commission so as to take action

against the petitioner and the orphanage in question. Ext P2 order makes it

clear that none of the procedures contemplated under law was undertaken

before making the recommendation. It is also not specified in the order as to

whether the recommendations made on the basis of a majority decision of the

commission, which is a mandatory requirement under law as per the provisions

deliberated above .

19. Having gone through the provisions of law elaborately, it is clear that

the procedure adopted by respondents 2 to 4 on receipt of the complaint is

totally illegal and strange to the provisions of the Act, 2005 and the Rules,

2006. Looking from that angle, I am unable to accept the contentions put forth

by the respondents that the action was initiated in accordance with the

provisions of Act, 2005 and the Rules, 2006. There is no case for respondents

2 to 4 that any notice was issued to the petitioner or orphanage before the

recommendations were made. That apart even though Exhibit P2 is styled as

recommendation, in effect arbitrary directions are issued by the Member of the

National Commission to the District Collector, to take action against the

petitioner and the orphanage and also to pay compensation through the

management of the orphanage. It is also well settled in law that when a

statute prescribes a procedure to be followed by the authority in order to take

a decision , that shall be scrupulously followed whatever be the difficulties and

whatever be the consequences of the outcome. But in the case at hand, I do

not think even a semblance of the procedure was followed by the statutory

authority , which makes the orders impugned unacceptable in law.

20. Moreover, the Amicus Curiae appointed by this Court has filed a

detailed report, which is extracted above, from where I could gather that the

allegations made in the complaint filed by the organisation in Delhi cannot be

said to be correct fully. In fact the commission ought to have undertaken a

threadbare investigation into the matter by examining the child and the

mother, and providing sufficient opportunity of participation to the petitioner

also, since the allegations made were very serious in nature.

21.Taking into account all the above aspects, I have no doubt in my mind

that Exhibit P2 order issued by the Member of the National Commission and

the consequential order issued by the District Collector viz., Exhibit P1 are

illegal and arbitrary, liable to be quashed exercising the power conferred under

Article 226 of the Constitution of India. Accordingly, I do so and the writ

petition is allowed to that extent. However, I make it clear that the disposal of

the writ petition as above shall not have any bearing to the criminal

proceedings pending in regard to the incident in question. Before I part with

the Judgment, I express my sincere gratitude to the learned Amicus Curiae,

Smt Girija K Gopal for her valuable assistance and sincere efforts in the

matter .

Sd/-

                                                SHAJI P.CHALY

smv                                                 JUDGE



                            APPENDIX
PETITIONER'S EXHIBITS:

EXHIBIT P1           TRUE COPY OF THE LETTER S.9-40609/2012
                     ISSUED BY THE 1ST RESPONDENT DATED
                     06/11/2012.

EXHIBIT P2           TRUE COPY OF THE LETTER FILE NO. KL-
                     110115/9202/09/COMP/MO28 ISSUED BY THE 4TH
                     RESPONDENT DATED 28/09/2012.

EXHIBIT P3           TRUE COPY OF THE REPRESENTATION DATED
                     10/12/2012.

EXHIBIT P4           TRUE COPY OF THE REPRESENTATION DATED
                     17/12/2012.

RESPONDENT'S EXHIBITS:

EXHIBIT R2(A)        TRUE COPY OF THE COMPLAINT DATED 05/10/2009
                     ALONG WITH ITS TRUE ENGLISH TRANSLATION.

EXHIBIT R2(B)        TRUE COPY OF THE FORWARDING LETTER DATED
                     06/11/2009.

EXHIBIT R2(C)        TRUE COPY OF THE REMINDER LETTER DATED
                     13/01/2010.

EXHIBIT R2(D)        TRUE COPY OF THE REMINDER LETTER DATED
                     08/03/2010.

EXHIBIT R2(E)        TRUE COPY OF THE REMINDER LETTER DATED
                     17/05/2010.

EXHIBIT R2(F)        TRUE COPY OF THE REMINDER DATED 13/07/2011.

EXHIBIT R2(G)        TRUE COPY OF THE INQUIRY REPORT DATED
                     15/09/2012.

EXHIBITR2(H)         TRUE COPY OF THE LETTER DATED 01/10/2012.

EXHIBIT R2(I)        TRUE COPY OF LETTER DATED 26/12/2012.

EXHIBIT R2(J)        TRUE COPY OF LETTER DATED 26/12/2012.