1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE10H DAY OF NOVEMBER, 2016 B E F O R E THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA WRIT PETITION NO.48227/2012 (S-KSRTC) BETWEEN: THE MANAGING DIRECTOR BANGALORE METROPOLITAN TRANSPORT CORPORATION, CENTRAL OFFICE, K.H.ROAD, BANGALORE - 560 027, REP. BY CHIEF LAW OFFICER. ... PETITIONER (BY SMT. H.R. RENUKA, ADV.) AND:
1. SMT. SUMITRA JUNIOR ASSISTANT, BMTC, NO.67, LAL BHAGH, SIDDAPURA, JAYANAGAR1T BLOCK, BANGALORE-560 011.
2. KARNATAKA STATE WOMEN COMMISSION NO.107, CAUVERY BHAVAN, I FLOOR, KARNATAKA HOUSING BOARD BUILDING, K.G. ROAD, 2 BANGALORE – 560 009 REP. BY ITS PRESIDENT. R2 AMENDED VIDE ORDER
DATED2809.2016. ... RESPONDENTS (BY SRI H.P. GANGESH GOWDA & SMT. RATTIHALLI GEETHA VEERANNA, ADVS. FOR R1; SRI D. ASWATHAPPA, AGA FOR R2) THIS PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
IN COMPLAINT NO.KARAMA38& 39/2007-08 DATED0409.2012 PASSED BY THE KARNATAKA STATE WOMEN COMMISSION, BANGALORE. THE CERTIFIED COPY OF THE ORDER
DATED0409.2012 IS PRODUCED HEREWITH AND MARKED AS ANNEXURE-A. THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
The respondent No.1, a Junior Assistant in the petitioner Corporation, having filed a complaint before the respondent No.2 – Karnataka State Women Commission (‘Commission’ for short), alleging that the petitioner indulged in an unfair labour practice and she was illegally transferred from Depot No.15 to Depot No.21, thus was put to mental agony and torture etc., and respondent No.2 having issued a Show-Cause Notice, the petitioner 3 produced the files showing that the complainant instead of performing her duty as an employee, indulged in other activities, created nuisance and trouble in the smooth functioning of the Corporation and that O.S.No.1734/2007 filed was decreed restraining her from interfering into the affairs of the Corporation. The Commission having passed the order dated 04.09.2012 vide Annexure-A and directed the petitioner to reinstate the respondent No.1 into the service with consequential benefits, this petition was filed to quash Annexure-A. By an ad-interim order operation and execution of the impugned order was stayed.
2. Smt.H.R.Renuka, learned advocate, contended that the impugned order is one without jurisdiction. She submitted that the Commission has no jurisdiction to pass the order in terms of Annexure-A and direct the reinstatement of respondent No.1 into service with all consequential benefits, as the same amounts to usurping the jurisdiction of the Forums under the labour laws. She contended that the Commission has exercised the 4 jurisdiction not vested in it and the impugned order being ultra vires, is liable to be quashed.
3. Sri H.P.Gangesh Gowda and Smt. Rattihalli Geetha Veeranna, learned advocates on the other hand submitted that having regard to the facts and circumstances of the case no interference with the impugned order is called for, in as much as, the rights of a woman, which was sought to be illegally interfered with by the petitioner was only protected. Submissions were made in support of the order passed as at Annexure-A.
4. Having regard to the submissions made by the learned advocates and the record of the case, point for consideration is “Whether the Commission has the power to issue direction for reinstatement of the employee and for extension of all service/monetary benefits?.” 5. Karnataka State Commission for Women Act, 1995 (for short ‘the Act’) was enacted by the Karnataka State Legislature to constitute a Commission for women 5 and to provide for matters connected therewith or incidental thereto and for the purposes appearing therein. Sub-section (1) of S.3 empowers the Government to constitute the Commission to exercise the powers conferred on and to perform the functions assigned to it by or under the Act. Sub-section (2) provides the composition of the Commission consisting of a Chairperson and Members to be nominated by the Government. S.5 provides for Secretary and as per Clause (f) of Sub-section (2) of S.3, he shall be the Member – Secretary. S.7 provides for the meetings of the Commission.
6. The functions of Commission have been specified in S.9. The same reads thus: “9. Functions of the Commission.- (1) The Commission shall perform all or any of the following functions namely: - (a) (b) (c) (d) investigate and examine all matters relating to the safeguard provided for women under the Constitution and other laws; present to the Government, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; make in such reports recommendations for the effective implementation of the conditions of women by the State; those safeguards for improving review, from time to time, the existing provisions of the Constitution and other the women and recommend amendments thereto so as to suggest remedial laws affecting (e) (f) (g) (h) (i) (j) (k) (l) 6 legislative measures to meet any lacunae or inadequacies or shortcomings in such legislations; take up the cases of violation of the provisions of the Constitution and of other laws relating to women with the appropriate authorities; look into complaints and take suo-motu notice of matters relating to,- (i) (ii) (iii) laws enacted deprivation of women's rights; non-implementation of to provide protection to women and also to achieve the objective of equality and development; non-compliance of policy decision, guidelines or instructions aimed at mitigating hardships and ensuring welfare and providing relief to women and take up the issues arising out of such matters with appropriate authorities; call for special studies or investigation into specific problems or situations arising out of discrimination and atrocities against women and to recommend strategies for their removal; the constraints so as identify undertake promotional and educational research so as to suggest ways of ensuring due representation of women in all spheres and identify factors responsible for impending their advancement, such as, lack of access to housing and basic services, inadequate support services and technologies for reducing drudgery and occupational health hazards and for increasing their productivity; inspect or cause to be inspected a jail, remand home, women's institution or other place of custody where women are kept as prisoners or otherwise and take up with the concerned authorities for remedial action, wherever found necessary; fund litigation involving issues affecting a large body of women; participate and advice on the planning process of socio- economic development of women; evaluate the progress of the development of women under the State; (m) make periodical report to the Government on any matter pertaining to women and in particular various difficulties under which women toil; 7 (n) (o) (p) involve with voluntary organisations in the State, more particularly women's organisations besides governmental departments and its agencies in the discharging of its functions; assist the women to ensure equal and fair justice in matrimonial disputes before the family courts; any other matter which may be referred to it by the Government: Provided that if any matter specified in sub-section (1) is undertaken by the National Commission for Women constituted under section 3 of the National Commission for Women Act, 1990 (Central Act 20 of 1990), the State Commission for women shall cease to have jurisdiction in such matters. (2) If authorities referred to in clause (e) of sub-section (1), fails to take any action on the suggestions or recommendations made by the Commission, it may report the same to the Government which shall take necessary action. (3) The Government shall cause the recommendations of the Commission to be laid before each House of the State Legislature along with the memorandum explaining the action taken or proposed to be taken on the recommendations and the reasons for non-acceptance, if any, of any such recommendations.” 7. It can be seen from S.9 that the Commission has been authorized to take up the study in respect of economic, educational and health situation of women and make its recommendations to the State Government. Further, the Commission is competent to look into complaints or suo-motu issue notice in respect of matters specified in S.9(1)(f). Clause (d) of sub-Section (1) of S.9 of the Act provides that the Commission shall review, from 8 time to time, the existing provisions of the Constitution and other laws affecting the women and recommend amendments thereto so as to suggest remedial legislative measures to meet any lacunae or inadequacies or shortcomings in such legislations. The Commission has been assigned the role of assisting non governmental organizations in the State in legal counselling on power of women and enabling such women to get legal aid. As per clause (i) of sub-Section (1) of S.9, the Commission is authorized to inspect or cause to be inspected a jail, remand home, women’s institution or other place of custody where women are kept as prisoners or otherwise and take up with the concerned authorities for remedial action, wherever found necessary. The Commission has been assigned the role of helping the women in distress as a friend and guide in enforcement of their legal rights. No power or authority has been given to the Commission to adjudicate or determine the rights of the parties. 9 8. Sri H.P. Gangesh Gowda, learned advocate submitted that the Commission having been conferred with the powers of a Civil Court under Civil Procedure Code in trying a suit as per S.10 and a complaint having been lodged by respondent No.1 concerning deprivation of her rights by the petitioner and the Commission having authority to decide the complaint, passed the order vide Annexure-A, in exercise of the powers under S.9(1)(f) of the Act.
9. The Act, in my opinion has not entrusted the Commission with the power to take up the role of a Court/Tribunal and determine the rights of the parties, in as much as, it is not discharging the functions of a Court/Tribunal.
10. The reading of S.10 makes it apparent that the Commission shall, while investigating any matter for the purposes of the Act have all the powers of a Civil Court under Civil Procedure Code, 1908 (Central Act 5 of 1908) in trying a suit and in particular, in respect of the matters 10 specified as per clauses (a) to (f) therein and not for other purposes. The Legislature has not conferred the jurisdiction on the Commission to pass an order of the nature as at Annexure-A. The Commission has exceeded the authority in passing the order as at Annexure-A, which is ultra vires the provisions of the Act.
11. Dealing with the powers of the Chief Commissioner and the Commissioners under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the rules made thereunder, Apex Court, in STATE BANK OF PATIALA Vs. VINESH KUMAR BHASIN, (2010) 4 SCC368 has held as under:
"18. It is evident from the said provisions, that neither the Chief Commissioner nor any Commissioner functioning under the Disabilities Act has power to issue any mandatory or prohibitory injunction or other interim directions. The fact that the Disabilities Act clothes them with certain powers of a civil court for discharge of their functions (which include the power to look into complaints), does not enable them to assume the other powers of a civil court which are not vested in them by the provisions of the Disabilities Act."
(underlining is by me) 11 12. Dealing with the powers of State Commission for Women in Orissa, Apex Court in the case of, BHABANI PRASAD JENA Vs. ORISSA STATE COMMISSION FOR WOMEN, (2010) 8 SCC633 has held as follows:
"11. Mr. Ranjan Mukherjee, learned counsel for Respondent 2 submitted that once a power has been given to the State Commission to receive complaints including the matter concerning deprivation of women of their rights, it is implied that the State Commission is authorised to decide these complaints. We are afraid, no such implied power can be read into Section 10(1)(d) as suggested by the learned counsel. The provision contained in Section 10(1)(d) is expressly clear that the State Commission may receive complaints in relation to the matters specified therein and on receipt of such complaints take up the matter with the authorities concerned for appropriate remedial measures. The 1993 Act has not entrusted 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. The State Commission is not a tribunal discharging the functions of a judicial character or a court."
(underlining is by me) 13. In W.P.No.83554/2010, KARNATAKA VETERNARY ANIMAL AND FISHERIES SCIENCES UNIVERSITY Vs. SUNIL KUMAR SHINDHE AND ANOTHER, respondent No.1 was a contractual assistant of the petitioner - University and had approached the Commissioner for Persons with Disabilities 12 to direct the petitioner to give the post of Assistant in the University by regularizing the services and extend the consequential benefits. The Commissioner having directed the petitioner to continue the complainant by giving contractual work, writ petition was filed by the University. Considering the rival contentions, which were similar in nature and taking note of the ratio of law laid down in Vinesh Kumar Bhasin’s case (supra), writ petition was allowed and the impugned order was quashed. In view of the above, it is clear that the Commission has exercised power not vested in it in the matter of passing the impugned order. Hence, the Order at Annexure-A being ulta vires and illegal is quashed, with no order as to costs. Sd/- JUDGE sac*