Madras High Court
Life Insurance Corporation Of ... vs The National Commission For ... on 28 October, 2022
W.P.No.27385 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.10.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.27385 of 2018
and
W.M.P.No.31891 of 2018
Life Insurance Corporation of India,
Rep.by its Zonal Manager,
Zonal Office,
153, Anna Salai, Chennai – 600 002. ...Petitioner
Vs.
1.The National Commission for Scheduled Caste
Rep.by its Director,
Shastri Bhavan, State Office,
Chennai – 600 006.
2.Ms.P.Vennila ..Respondents
Prayer : Writ Petition filed Under Article 226 of the Constitution of India,
to issue a Writ of Certiorari, calling for the records relating to the order
made in Case No.13, File No.9/8/2017 Rep.CGU dated 26.07.2018 and as
communicated by letter No.9/8/2017 Rep.CGU dated 03.09.2018 by the 1st
respondent Commission and quash the same as being illegal, perverse,
arbitary and unjust.
1/16
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W.P.No.27385 of 2018
For Petitioner : Mr.C.K.Chandrasekkar
For R1 : Mr.T.K.Thirumalaisamy
Central Government Standing Counsel
For R2 : Mr.G.Alex Bengigar
ORDER
The minutes of hearing held on 26.07.2018 before the National
Commission for Scheduled Castes at Chennai, which was communicated
through letter dated 3rd September 2018 is under challenge in the present
writ petition.
2. The writ petitioner is Life Insurance Corporation of India. The
petitioner states that the 2nd respondent employee is working as Assistant in
the petitioner-Life Insurance Corporation of India. The 2nd respondent /
Ms.P.Vennila was appointed at Chennai Divisional Office II on
compassionate grounds due to the demise of her Mother Mrs.K.Sarbala. The
2nd respondent was posted at City Branch Office-XI, Chennai Divisional
Office II. She has studied M.Sc., (Bioinformatics) and she had two elder
sisters and got married and her younger brother was studying B.E., course
during the relevant point of time. The appointment of the 2nd respondent was
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W.P.No.27385 of 2018
confirmed on 01.01.2011. On 30.10.2014, she had made a request for
transfer. Her request for transfer was considered and from 09.11.2017, she
was working at City Branch Office – 28.
3. The second respondent belongs to Scheduled Caste Community.
The petitioner issued a Notification dated 12.01.2017 for promotion to the
cadre of Higher Grade Assistant. In the Notification, it was clearly stated
that the places of vacancies in Chennai Centre are mofussil branches of
Chennai Centre, Kancheepuram, Madurantakam, Chengalpattu, Tiruttani,
Ponneri, Gummidipoondi and Thiruvallur are the Mofussil branches of
Chennai Centre. During the process of promotion, the 2nd respondent got
selected. She was offered a posting in promotion year 2016-17 at one of the
Mofussil branches of Chennai Centre at Gummidipoondi and the 2nd
respondent refused to join at Gummidipoondi. She insisted that she should
be given posting within Chennai City since the request made by the 2nd
respondent employee was found unreasonable. The petitioner Management
had not acceded to the request.
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W.P.No.27385 of 2018
4. The 2nd respondent approached the first respondent / National
Commission for Scheduled Caste and submitted a complaint before the said
Commission on the ground that she was discriminated since she belongs to
Scheduled Caste community. The Commission issued notice to the writ
petitioner/Management regarding the grievances advanced by the second
respondent and directed them to appear and respond to the complaint. The
second respondent filed her rejoinder. The petitioner/Corporation furnished
all the details regarding the promotion granted to the 2 nd respondent and the
consequential posting order issued to her.
5. The first respondent / National Commission for Scheduled Caste
recorded the outcome of the hearing held on 26.7.2018 as under:
“The Hon'ble Vice Chairman had resented on the
absence of Zonal Manager, LIC of India, Chennai who was
called for the hearing on 26.7.2018. As the Zonal Manager,
LIC of India, Chennai was also called for hearing in another
case on 27.7.2018, the Hon'ble Vice Chairman desired to hear
the case on 27.7.2018 in the presence of the Zonal Manager.
On 27.7.2018, the Zonal Manager and the petitioner had
appeared for hearing. Both the petitioner and the
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W.P.No.27385 of 2018
Management explained their sides. The Hon'ble Vice
Chairman directed that only Chairman & Managing Director
of LIC has to be called for hearing the case in future. The
Hon'ble Vice Chairman directed the Zonal Manager of LIC to
submit list of employees promoted and transferred for the last
5 years. The Hon'ble Vice Chairman ordered the LIC to
promote the petitioner and post her in Chennai itself.”
6. The learned counsel for the petitioner mainly contended that the
first respondent has no jurisdiction or power to issue direction in the matter
of promotion and postings, which is the administrative prerogative of the
petitioner/Corporation. In the event of such direction by the first respondent,
the petitioner/Corporation may not be in a position to run the administration
efficiently and in a smooth manner. Thus, the petitioner has constrained to
move the present writ petition, questioning the validity of the directions
issued by the first respondent in its minutes passed on 26.07.2018.
7. The learned counsel appearing on behalf of the first respondent
made a submission that the first respondent/Commission is empowered to
adjudicate the issues raised in the complaint under Article 338 of the
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W.P.No.27385 of 2018
Constitution of India. Under Sub Clause 8, the Commission has all powers
of a Civil Court trying a suit and therefore, the Commission is empowered to
pass directions and orders based on the complaint, if any submitted by a
member of Scheduled Caste Community. Thus, there is no infirmity as such.
8. Let us consider the scope of the powers conferred under Article 338
of the Constitution of India to the National Commission for Scheduled
Castes.
9. Article 338, Sub Clause 8 of the Constitution of India, reads as
under:
“338. National Commission for Scheduled
Castes -
(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
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W.P.No.27385 of 2018
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.”
10. While investigating the matter under Sub Clause (a) and (b) of
Clause 5 to Article 338, the Commission shall have all the powers of a Civil
Court trying a suit and in particular in respect of the summoning and
enforcing the attendance of any person etc., as stipulated in the provision.
Thus, it is unambiguous that the Commission can exercise the powers of the
Civil Court for the purpose of conducting an adjudication in an effective
manner. Regarding the reliefs to be granted, the powers are to be confined
and the Commission may not issue any direction, directing the Government
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W.P.No.27385 of 2018
authorities or the Corporation authorities to grant promotion to a particular
person or issue posting to a person in a particular Station or place, which all
are governed under the Service conditions of an employee.
11. More specifically, National Commission is not empowered to issue
any direction to transfer an employee in a particular post or place. Promotion
is also a condition of service and all promotions are to be granted strictly in
accordance with the Service rules in force. While considering promotion and
for preparation of panel, the employer has to consider all the eligible
persons, who all are aspiring to secure promotion in accordance with the
rules in force and in the order of seniority. In the event of issuing any such
direction to promote the employee based on a complaint, then the same
would result in denial of promotional opportunity to all other eligible
employees, who all are waiting for promotion including the other Scheduled
Caste employees, who may be senior to the complainant in a particular case.
Therefore, the Commission has to exercise restraint in service matters, more
specifically, in the matters of promotion, transfer, postings etc.,
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W.P.No.27385 of 2018
12. Transfer is an incidental to service, more so, a condition of service.
Transfer being a condition of service, the employer is empowered to post an
employee in a particular place in the interest of public administration. In the
event of any such direction to transfer or post an employee in a particular
post, the same will affect the normal public administration and further, it
will result in infringement of the administrative powers, conferred on the
employer. The National Commission is not expected to interfere with the
routine administrative affairs of the Departments or the Corporation. If at all
there is any irregularity, illegality or violation of service rules are identified,
then the Commission may issue suitable recommendations to rectify the
same. However, merely issuing a direction to post an employee or transfer
an employee in a particular post or place would cause prejudice to the
interest of the public administration, which is not contemplated under Article
338 of the Constitution of India.
13. The scope of Article 338 of the Constitution of India cannot be
expanded for the purpose of interfering with the routine administrative
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W.P.No.27385 of 2018
affairs of the employer, which all are governed under the Service Rules in
force. While considering the complaint, if at all any violation of Service rules
are identified or traced out by the Commission, the Commission may issue
necessary recommendations to rectify the mistakes by following the rules in
force, but would not issue any straight direction to post a person or promote
a person in a particular place or cadre.
14. The very object is to ensure that the rights of the Scheduled Caste
persons are protected. Thus, if any rights are infringed, then the Commission
has to issue necessary directives to correct the mistakes in accordance with
the rules by the employers. Contrarily, the Commission cannot act as an
employer. A thin difference in this regard is to be scrupulously followed by
the Commission, while adjudicating the complaint and while issuing
directives.
15. Therefore, the Commission in such matters are expected to be
cautious and while protecting the rights of the Scheduled Caste community
people, they cannot interfere with the routine administration of the
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W.P.No.27385 of 2018
Department or Corporation. Thus, the powers conferred under Article 338,
Sub Clause 8 of the Constitution of India is for the purpose of adjudication
of issues by exercising all the powers of a Civil Court, trying a suit.
Therefore, the power of the Commission is to be exercised in the manner
contemplated and the Commission shall not usurp the administrative powers
conferred on the Government Departments and other Governmental
organizations or institutions.
16. The independence of powers conferred on each organization is to
be protected in consonance with the Constitutional provisions. One
institution, interfering with the powers of other institution must be done
strictly in accordance with the provisions of the Constitution and in service
matters, the employers have got prerogative powers to regulate its own
administration. Thus, in the event of identifying violation of right of a
member of a Scheduled Caste Community, the Commission may ensure that
the employer rectifies the mistakes or violations in the manner contemplated
under the Rules, but the Commission may not issue any straight direction to
transfer an employee or to promote an employee, which may result in
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W.P.No.27385 of 2018
infringement of the rights of all other employees, who all are otherwise
eligible for promotion in accordance with the rules.
17. Thus, in this regard, the Commission is expected to be more
cautious in the interest of public administration. It is relevant to consider
Article 335 of the Constitution of India, which ensures efficiency in public
administration. Thus, the Government Departments and institutions are
bound to maintain efficiency in public administration in the interest of public
at large and in the event of any interference in a routine administrative
affairs, they may not be in a position to run the administration smoothly.
18. Therefore, this Court is of the considered opinion that the
direction issued in the present case by the Commission to promote the
petitioner and post her in Chennai itself will amount to interference in the
administrative prerogative of the petitioner organization, which is
impermissible under Article 338 of the Constitution of India.
19. The learned counsel for the petitioner relied on the judgment of
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W.P.No.27385 of 2018
the Hon'ble Supreme Court of India in the case of All India Indian
Overseas Bank SC and ST Employees' Welfare Association and others
vs. Union of India others reported in (1996) 6 SCC 606 and the relevant
paragraphs are extracted hereunder:
“10. Interestingly, here, in clause (8) of Article 338,
the words used are "the Commission shall... have all the
powers of the Civil Court trying a suit". But the words "all
the powers of a Civil Court" have to be exercised "while
investigating any matter referred to in sub-clause (a) or
inquiring into any complaint referred to in sub-clause (b) of
clause 5". All the procedural powers of a civil court are
given to the Commission for the purpose of investigating and
inquiring into these matters and that too for that limited
purpose only. The powers of a civil court of granting
injunctions, 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.
11. The Commission having not been specifically
granted any power to issue interim injunctions, lacks the
authority to issue an order of the type found in the letter
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W.P.No.27385 of 2018
dated 4-3-1993. The order itself being bad for want of
jurisdiction, all other questions and considerations raised in
the appeal are redundant. The High Court was justified in
taking the view it did. The appeal is dismissed. No costs.”
20. The learned counsel for the petitioner brought to the notice of this
Court that the grievances of the 2nd respondent was already redressed and
further, she got promotion and now serving at Tirutani.
21. Thus, the orders made in Case No.13, File No.9/8/2017 Rep.CGU
dated 26.07.2018 and as communicated by letter No.9/8/2017 Rep.CGU
dated 03.09.2018 by the 1st respondent Commission are quashed and the
writ petition stands allowed. No costs.
28.10.2022
Index : Yes
Speaking order:Yes
kak
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W.P.No.27385 of 2018
To
1.The Director,
National Commission for Scheduled Caste
Shastri Bhavan, State Office,
Chennai – 600 006.
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W.P.No.27385 of 2018
S.M.SUBRAMANIAM, J.
kak
W.P.No.27385 of 2018
28.10.2022
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