CASE NO.: Appeal (civil) 13700 of 1996 PETITIONER: ALL INDIA INDIAN OVERSEAS BANK SC & ST EMPLOYEES WELFARE ASSN. AND ORS. RESPONDENT: UNION OF INDIA AND ORS, DATE OF JUDGMENT: 31/10/1996 BENCH: A.M. AHMADI C.J. & S.P. BHARUCHA JUDGMENT:
JUDGMENT
1996 Supp(8) SCR 295
The Judgment of the Court was delivered by :
AHMADI, CJ. Leave granted.
By a letter No. 9/D/SCTC/M(S)/93 dated March 4, 1993, the National
Commission for Scheduled Castes and Scheduled Tribes (hereafter referred to
as ‘the Commission’) directed the Executive Director of the Indian Overseas
Bank, the respondent No.3, thus:
"No.9/D/SCTC/M(s)/93 4th March, 1993 Dear Shri K, Subramanian,
Please refer to the commission letter No.9/D/SCTC/M(S)/92 dated I8th Feb.93
in the matter of contravention of Government Directives relating
reservation for SC/ST in Indian Overseas Bank and Other matters adversely
affecting their interests.
The commission had desired the reply of Bank within 7 days of said letter.
It is a matter of concern that the reply from bank has not reached the
commission till date.
In view of the prima facie examination of the matter and considering the
fact that the Bank is reportedly going ahead with the promotion process,
the commission, in exercise of the powers conferred upon it under section 8
of the Constitution (Sixty-Fifth Amendment) Act, 1990 hereby directs the
Bank to stop the promotion process pending further investigation and final
verdict in the matter.
The commission also direct for requisitioning of all records in custody of
Bank relating to the said matter be produced before it For this purpose you
are requested to ascertain a date from my office.
Please advice compliance,
thanking you,
Yours faithfully,
Sd/-
(B. SAMMAIAH) MEMBER”
It is a fact that when the letter was issued the respondent No.3 was
actually going through the process of deciding on promotion of various
employees at various levels. On March 4,1993 when the letter was written,
the respondent No. 2, was perhaps not aware of the reply addressed to it by
respondent No. 3 on that very day meeting all the queries raised in the
letter dated February 18,1993, which letter was perhaps written on the
representation made by the President of the All India Indian Overseas Bank
Scheduled Castes and Scheduled Tribes Welfare Association, the appellant
before us, alleging grave injustice to its members in matters of promotion.
In view of the letter of respondent No. 2 quoted above, respondent No. 3
issued a letter on the same day staying the promotion process. On March 6,
1993 the Indian Overseas Bank Officers Association, the respondent No.4,
and respondents Nos. 5 to 8 who were candidates for selection for promotion
filed a writ Petition (Civil) No. 1362 of 1993 praying for a writ of
Mandamus quashing the order dated March 4, 1993 staying the selection
process. The High Court by the impugned judgment allowed the writ petition
with the finding that the Commission had no power to issue interim orders
like the one in question. Hence this appeal by special leave.
The short question that arises for consideration in this matter is whether
the Commission had the power to issue a direction in the nature of an
interim injunction? The appellant supports the letter dated March 4, 1993
of the Commission on the facts of the case which supposedly justify the
passing of an interim direction of the type contained in the letter dated
March 4, 1993. The appellant refers to Article 338, clauses (5) and (8), of
the Constitution introduced by the Constitution (Sixty Fifth Amendment)
Act, 1990 to argue that the Commission had power to requisition public
record and hence it could issue directions as if it enjoyed powers like a
civil court for all purposes. Further the appellant contends that even a
single member of the Commission has every authority to pass a direction on
behalf of the entire Commission and hence the High Court was wrong in
expressing the view that a single member of the Commission could not :have
issued the direction contained in the letter dated March 4, 1993. The
appellant further contends that no writ would lie against an interim order
of the Commission.
The basic question, however, is whether the Commission had the authority to
issue the direction it did by the letter dated March 4, 1993. Clauses (5)
and (8) of Article 338 of the Constitution, which the appellant refers to
as the source of the Commission’s power, can be quoted for ready reference:
“(5) It shall be the duty of the Commission-(a) to investigate and monitor
all matters relating to the safeguards provided for the Scheduled Castes
and Scheduled Tribes under this Commission or under any other law for the
time being in force or under any order of the Government and to evaluate
the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation of
rights and safeguards of the Scheduled Castes :and Scheduled Tribes;
(c) to participate and advise on the planning process of socio-economic
development of the Scheduled Castes and Scheduled Tribes and to evaluate
the progress of their development under “the Union and any State;
:(d) to present to the President, annually and at such other times as the
Commission may deem fit, reports upon the working of those safeguards;
(e) to make in such report recommendations as to the measures that should
be taken by the Union or any State for the effective implementation of
those safeguards and other measures for the protection, welfare and socio-
economic development of the Scheduled Castes and Scheduled Tribes; and
:(f) to discharge such other functions in relation to the protection,
welfare and development and advancement of the Scheduled Castes and
Scheduled Tribes as the President may, subject to the provisions of any law
made by Parliament, by rule specify.
(6) The President shall cause all such reports to be laid before each House
of Parliament along with a memorandum explaining the action taken or
purposed to be taken on the recommendations relating to the Union and the
reasons for the non-acceptance, if any, of any of such recommendations.
(7) Where any such report, or any part thereof, relates to any matter with
which any State Government is concerned, a copy of such report shall be
forwarded to the Governor of the State who shall cause it to be laid before
the Legislature of the State along with a memorandum explaining the action
taken or proposed to be taken on the recommendations relating to the State
and the reasons for the non-acceptance, if any, of any of such
recommendations.
(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 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,”
It can be seen from a plain reading of clause 8 that the Commission has the
power of the Civil Court for the purpose of conducting an investigation
contemplated in sub-clause (a) and an inquiry into a complaint referred to
in sub-clause (b) of Clause 5 of Article 338 of the Constitution.
Sub-clauses (a) to (f) of clause (3) clearly indicate the area in which the
Commission may use the powers of a Civil Court. The Commission has the
power to summon and enforce attendance of any person from any part of India
and examine him on oath; it can require the discovery and production of
documents, so on and so forth. Ail these powers are essential to facilitate
an investigation or an inquiry. Such powers do not convert the Commission
into Civil Court.
It will be interesting to observe that the Commissions of Inquiry Act
(1952) grants similar powers to the Commission of inquiry. Section 4 and
sub-sections (4) and (5) of Section 5 of the Commissions of Inquiry Act,
1952 which confer such powers are quoted below:
“4. Powers of Commission-The Commission shall have the powers of a Civil
Court, while trying a suit under the Code of Civil Procedure, 1908 (Act V
of 1908) in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person 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 or documents;
(f) any other matter which may be prescribed.
5. (4) The Commission shall be deemed to be a civil Court and when any
offence as is described in section 175, section 178, Section 179, Section
180 or Section 228 of the Indian Penal Code (Act XLV of 1860) is committed
in the view or presence of the Commission, the Commission may. after
recording the facts constituting the offence and the statement of the
accused as provided for in the Code of Criminal Procedure, 1898 (Act V of
1898) forward the 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 had been forwarded to him
under Section 482 of the Code of Criminal Procedure, 1898.
(5) Any proceedings before the Commission shall be deemed to be a judicial
proceeding within the meaning of Sections 193 and 228 of the Indian Penal
Code (Act XLV of I860).”
In M.V. Rajwade v. Dr. S.M. Hassan, AIR (1954) Nagpur 71, the question
whether the Commission of Inquiry, by virtue of the above provisions, could
be treated to be a civil court for the purpose of the Contempt of Courts
Act, 1971 came to be considered. The High Court observed as under:
“It would appear from Section 4 that it only clothes the Commission with
certain powers of a Civil Court but does not confer on it the status of a
Court, It is only under subsection (4) of Section 5 that the Commission is
deemed to be a Civil Court and sub-section (5) imparts to the proceeding
before it the character of a judicial proceeding. However, these provisions
only create a fiction which cannot extend beyond the purpose for which it
is created,”
The judgment in the case of M. K Rajwade (supra) was referred to with
approval by this Court in Dr. Baliram Waman Hiray v. Justice B. Lentin and
others, [1988] 4 SCC 419. The question in that case was whether the
Commission of Inquiry constituted under Section 3(1) of the Commissions of
Inquiry Act, 1952 was a court for the purpose of Section 195 (l)(b)
Criminal Procedure Code, 1973, It was contended before the Court that sub-
Section (4) of Section 5 of the Commission of Inquiry Act created a legal
fiction by which the Commission of Inquiry was deemed to be a Civil Court
for all purposes. It was held that the words “for all purposes” are not
there in the first part of sub-section (4) and the Court cannot, in the
guise of interpreting the provision, supply any casus omissus. The Court
went on to say that the purpose of creating the fiction was reflected in
the second part of sub-clause 4, viz., for the purpose of proceedings under
Section 482 of the Old Code and Section 346 of the new Code of Criminal
Procedure.
Interestingly, here, in clause 8 of Article 138, 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,
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 dated March 4, 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,