Consolidated WP(C) Nos. 22302/2021 & 21572/2021: K. Senkumar v. State of Kerala & Others; Thulaseedhara Kurup v. Kerala State SC/ST Commission & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 7[TH] DAY OF NOVEMBER 2022 / 16TH KARTHIKA, 1944** **WP(C) NO. 22302 OF 2021** ## **PETITIONER:** K.SENKUMAR, AGED 50, S/O.KUTTAPPAN, PALAPRA HOUSE, ATTAPPALLLAM P.O., KUMILY, IDUKKI. BY ADV C.S.MANILAL ## **RESPONDENTS:** 1 THE STATE OF KERALA REP.BY THE ADDITIONAL CHIEF SECRETARY (HOME AND VIGILANCE), SECRETARIAT, TRIVANDRUM 695 001 2 THE KERALA STATE COMMISSION FOR SCHEDULED CASTE & SCHEDULED TRIBE, REP.BY THE REGISTRAR, AYYANKALI BHAVAN, VELLAYAMBALAM, TRIVANDRUM 695 003 3 THE STATE POLICE CHIEF, POLICE HEADQUARTERS, VAZHUTHACAUD, TRIVANDRUM-695010. 4 THULASSEDHARA KURUP ASSISTANT SUB INSPECTOR OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU UNIT, KOTTAYAM 686 001 BY ADVS. R2 BY ADV.MARY BENJEMIN KRISHNA PRASAD. S SINDHU S KAMATH SWAPNA S.K. ROHINI NAIR ## **OTHER PRESENT:** GP ADV. P.S.APPU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2022, ALONG WITH WP(C).21572/2021, THE COURT ON 07.11.2022 DELIVERED THE FOLLOWING: W.P.(C)s.22302 & 21572/2021 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 7[TH] DAY OF NOVEMBER 2022 / 16TH KARTHIKA, 1944** ## **WP(C) NO. 21572 OF 2021** ## **PETITIONER:** THULASEEDHARA KURUP .G, AGED 46 YEARS S/O. GOPALAKRISHNAN NAIR, ASST. SUB INSPECTOR OF POLICE, VIGILANCE AND ANTI- CORRUPTION BUREAU KOTTAYAM UNIT, RESIDING AT PARAYAKATTIL HOUSE, PULIYUR P.O, CHENGANNUR 689 122. BY ADVS. KRISHNA PRASAD. S SINDHU S KAMATH SWAPNA S.K. ROHINI NAIR ## **RESPONDENTS:** 1 THE KERALA STATE SCHEDULED CASTE AND SCHEDULED TRIBES COMMISSION, AYYANKALI BHAVAN KANAKA NAGAR, VELLAYAMBALAM, THIRUVANANTHPURAM-695 003, REPRESENTED BY ITS MEMBER SECRETARY. 2 THE SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU (EASTERN RANGE), KOTTAYAM, SUB JAIL RD, COLLECTORATE, KOTTAYAM 686 002. 3 THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, IDUKKI UNIT, MUTTOM, IDUKKI DISTRICT-685 587 4 DIRECTOR, VIGILANCE AND ANTI-CORRUPTION BUREAU, VIKAS BHAVAN, PALAYAM P.O, THIRUVANATHAPURAM, KERALA 695 033. W.P.(C)s.22302 & 21572/2021 3 5 THE STATE POLICE CHIEF, KERALA STATE POLICE HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM, KERALA-695010 6 MR. SENKUMAR, S/O. KUTTAPPAN, PALAPPARA HOUSE, ATTAPPALLAM P.O, KUMILY, IDUKKI DISTRICT-685 509 BY ADVS. R1 BY ADV.MARY BENJEMIN C.S.MANILAL S.NIDHEESH GP ADV. P.S. APPU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2022, ALONG WITH WP(C).22302/2021, THE COURT ON 07.11.2022 DELIVERED THE FOLLOWING: W.P.(C)s.22302 & 21572/2021 4 ## **JUDGMENT** **[WP(C) Nos.22302/2021, 21572/2021]** ## **W.P.(C) No. 21572 of 2021** The petitioner, while working as Assistant Sub Inspector in the Vigilance and Anti Corruption Bureau, Kottayam Unit, was part of a vigilance team that had successfully set a trap and arrested one M.K.Ajikumar, a Clerk in the Kumily Grama Panchayat. The trap and consequent arrest was based on a complaint that Ajikumar had demanded bribe for numbering the motor shed of one Vijay Kumar. While the petitioner and other officials were completing the formalities after the arrest of M.K.Ajikumar, the 6[th] respondent, who was the Secretary of Kumily Grama Panchayat, rushed towards them, infuriated at Ajikumar for having named him as an accomplice. Apprehending that the 6[th] respondent may cause bodily injury to Ajikumar, the petitioner, along with other officers, forcibly prevented the 6[th] respondent from proceeding towards Ajikumar. Thereafter, Ext. P2 FIR was prepared and Ajikumar W.P.(C)s.22302 & 21572/2021 5 remanded to judicial custody by the jurisdictional court. While investigation into the trap case was progressing, the 6[th] respondent submitted a complaint before the Superintendent of Police, VACB Kottayam alleging that the petitioner and two of his colleagues had abused and assaulted him on the day on which Ajikumar was arrested. He also alleged that the petitioner and others abused him by calling his caste name. Thereafter, without waiting for the enquiry based on Ext. P2 complaint to be completed, the 6[th] respondent preferred Ext. P4 petition before the 1[st] respondent Commission. 2. On receipt of Ext.P4 complaint, the Commission ordered the 3[rd] respondent to conduct an enquiry and submit report within 30 days. Accordingly, the 3rd respondent submitted Ext.P6 report, finding the allegations to be baseless and made with the intention of saving himself from a possible prosecution or departmental proceedings, as he was named as an accomplice by Ajikumar. It is also reported that the vigilance team had acted in accordance with the procedure prescribed under Chapter X of the Vigilance Manual, the Code W.P.(C)s.22302 & 21572/2021 6 of Criminal Procedure and the Prevention of Corruption Act. 3. After submission of Ext.P6 report, 3rd respondent received Ext. P7 notice requiring him to appear before the Commission on 22.9.2021. The petitioner also accompanied the 3rd respondent to the Commission on 22.9.2021. According to the petitioner, on being informed by the 6th respondent about the petitioner's presence, the Commission asked him to apologise to the 6th respondent and compromise the case. The petitioner refused to apologize since he had not misbehaved with the 6th respondent. Thereupon, the Commission adjourned the case. 4. To the petitioner's dismay, the Commission issued Ext. P8 press release, based on an entirely false allegation raised by the 6[th] respondent that on 22.09.2021, the petitioner had abused and threatened the 6[th] respondent from the veranda outside the sitting hall of the Commission. In Ext. P8 press release it is observed that the petitioner's action amounts to questioning the authority of the Commission and direction issued to the State Police Chief to conduct enquiry W.P.(C)s.22302 & 21572/2021 7 after keeping the petitioner away from service and take strict legal action against him. Aggrieved, this writ petition is filed seeking the following reliefs; i) To issue a writ of mandamus or any other writ, direction or order, declare that the 1st respondent does not have any authority to proceed with Ext. P4 complaint filed by the 6th respondent. ii) To issue a writ of mandamus or any other writ, direction or order, directing the 5th respondent not to initiate any punitive actions against the petitioner on the direction given by the 1st respondent. iii) To issue a writ of certiorari or any other writ, to call for records which led to the issuance of Ext. P8 press release and quash the same. iv) To issue such other relief as this Honourable Court may deem fit in the circumstances of this case. 5. Learned counsel for the petitioner contended that the 1[st] respondent Commission is not empowered to issue either a press release in the nature of Ext. P8 or require the State Police Chief to conduct an enquiry based on false allegations. It is pointed out that the Commission derives its power from the Kerala State Commission for the Scheduled Castes and the W.P.(C)s.22302 & 21572/2021 8 Scheduled Tribes Act, 2007 ('the Act' for short) and its procedure is prescribed under Scheduled Castes and the Scheduled Tribes Rules, 2011 ('the Rules' for short). Neither the Act nor the Rules clothe the Commission with power to order enquiry by the State Police Chief and direct suspension of an officer. The illegality is further aggravated by the direction having been issued without hearing the affected person. 6. It is submitted that, all throughout, the attempt of the 6[th] respondent was to derail the investigation of the crime registered against Ajikumar, since the 6[th] respondent apprehended that he may also be implicated as accused or disciplinary action recommended against him. Referring to Ext P9 it is submitted that the apprehension has turned out to be correct since the Director VACB has recommended to take departmental action against the 6[th] respondent. 7. Adv. C.S. Manilal, learned Counsel for the 6[th] respondent, raised an objection as to the maintainability of the writ petition. It is contended that a writ of certiorari cannot W.P.(C)s.22302 & 21572/2021 9 be issued without the order sought to be quashed being made part of the records. Instead of the impugned order, the petitioner has produced only a copy of the press release. In support of this contention, reliance is placed on the decision in **A.X. Varghese v. Union of India** (1991 (1) KLT 635). It is argued that the incident in which the petitioner was abused and threatened having occurred within the premises of the Commission, it was well within the powers of the Commission to recommend initiation of departmental proceedings against the offender. In support of this argument reference is made to Sections 9(b) and 11 of the Act. 8. Adv. Mary Benjamin, learned Standing Counsel for the Commission, submitted that the Commission is conferred with the power to regulate its own procedure and to issue press releases whenever warranted. 9. The 1[st] respondent Commission is constituted as per Section 3 of the Act. As such, the Commission cannot exercise functions and powers other than what is conferred by Section 9, which empowers the Commission to exercise the following W.P.(C)s.22302 & 21572/2021 10 ## functions; “9. Functions of the Commission.- The Commission shall have the following functions, namely:- (a) to investigate and examine the working of various safeguards provided in the Constitution of India or under any other law, for the time being in force, or under any order of the Government for the welfare and protection of the Scheduled Castes and the Scheduled Tribes in Kerala; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes and the Scheduled Tribes in Kerala and to take up such matters with the appropriate authorities. (c) to participate and advise on the planning process of socio economic development of the Scheduled Castes and the Scheduled Tribes and to evaluate the progress of their development in the State. (d) to make recommendations as to the measures that should be taken by the Government for the effective implementation of safeguards and other measures for the protection, welfare and socio economic development of the Scheduled Castes and the Scheduled Tribes and to make report to the Government annually and at such other time, as the Commission may deem fit; W.P.(C)s.22302 & 21572/2021 11 (e) to discharge such other functions in relation to the protection, welfare development and advancement of the Scheduled Castes and the Scheduled Tribes, as may be prescribed; Provided that if any matter specified in this section is dealt with by the National Commission for the Scheduled castes and the Scheduled Tribes established under Article 338 of the Constitution of India, the State Commission for the Scheduled Castes and the Scheduled Tribes shall cease to have jurisdiction on such matter.” ## 10. The following additional functions can also be performed by virtue of Rule 6. “6. Additional functions of the Commission.- (1) The Commission shall have the following functions in addition to those functions specified in section 9 of the Act, namely:- (a) to make a factual assessment of the representation of Scheduled Castes and Scheduled Tribes in the service of the Government, Public Sector Undertakings, Statutory Bodies, Universities, Local Self Government Institutions, Quasi Government Bodies and Public Trusts and in case representation is inadequate to suggest measures to overcome the shortcomings; W.P.(C)s.22302 & 21572/2021 12 (b) to study other matters which in the opinion of the Commission are important from the point of view of the welfare and development of Scheduled Castes and Scheduled Tribes and to make appropriate recommendations; (c) to consider the grievances of the Scheduled Castes and the Scheduled Tribes and to suggest appropriate solutions from time to time to Government or the Government Departments concerned; (d) to inspect or cause to be inspected hostels, residential schools or any other private or grant-in-aid institutions including training centers where Scheduled Caste and Scheduled Tribe students or trainees reside as hostelliers or trainees for studies; (e) to undertake tours in various parts of the State for studies relating to the problems for the development of Scheduled Castes and Scheduled Tribes and to submit reports to Government for appropriate action; (f) to enquire into grievances, petitions and complaints from employees belonging to Scheduled Castes and Scheduled Tribes of Kerala employed in Government offices, Public Sector Undertakings, Statutory Bodies, Universities, Local Self Government Institutions, QuasiGovernment Undertakings, Public Trusts etc., and submit report to Government or other authorities as it deems fit.” W.P.(C)s.22302 & 21572/2021 13 11. A conjoint reading of Section 9 and Rule 6 shows that the prime function of the Commission is to investigate and examine the working of the safeguards under the Constitution, providing for the welfare and protection of Scheduled Castes and Scheduled Tribes and to enquire into complaints regarding infringement of the rights conferred on them. The statute does not empower the Commission to investigate, examine or enquire into individual complaints of assault, abuse etc. Such investigation and consequent penal action is within the realm of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Even as per Section 9(b), the Commission can only inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes and the Scheduled Tribes in Kerala and take up such matters with the appropriate authorities. In **Vimalan v. Kerala State Scheduled Caste & Scheduled Tribes Commission** (2020 (3) KLT 625), this Court considered the ambit of section 9 and held as under; W.P.(C)s.22302 & 21572/2021 14 “Under Section 9(b), the Commission is empowered to enquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes and the Scheduled Tribes in Kerala and to take up such matters with the appropriate authorities. The deprivation of rights and safeguards in S.9(a) cannot be equated with the term ‘atrocity’ in the Prevention of Atrocities Act. As can be understood from a reading of S.9(a), the rights and safeguards mentioned in S.9(b) are the rights and safeguards provided in the Constitution of India or under any law or order issued by the Government, for the welfare of the Scheduled Castes and Scheduled Tribes. On the other hand, the Prevention of Atrocities Act seek to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto. The Commission cannot transgress into the field covered by the Prevention of Atrocities Act and direct investigation to be conducted into the offences coming under that Act. Even otherwise, on a plain reading of S.9(b), it is clear that after enquiring into specific complaints with respect to the deprivation of rights and safeguards, the Commission can only take up such matters with the appropriate authority.” W.P.(C)s.22302 & 21572/2021 15 12. In this context it has to be mentioned that Rule 7 confers the Commission with the power to cause local enquiry into a complaint. Such enquiry may be held by the Chairperson himself or by a member or other officer of the Commission authorised by the Chairperson. The Rule also empowers the Commission to call for enquiry reports from field level functionaries of the Government, Local Self Government institutions, Public Sector Undertakings and Public Trusts. Therefore, Rule 7 also does not authorize the Commission to direct inquiry by the State Police Chief and consequential disciplinary action against an officer. No doubt, the Commission can resort to appropriate proceedings if its functioning is disrupted or an untoward incident takes place within the Commission sitting hall. 13. It is also pertinent to note that, Rule 10 provides for an opportunity of hearing to the affected person or authority, before the Commission passes an order. In the case at hand, no such opportunity was granted. The contention that the Commission is empowered to prescribe its own procedure W.P.(C)s.22302 & 21572/2021 16 cannot also be countenanced, since, as per Section 8 the Commission can only regulate its own procedure. Although, under Section 11, the Commission is conferred with the power with respect to any matter that may be prescribed, such prescription has to be in the form of Rules issued under Section 16. 14. As regards the contention that the petitioner cannot seek to quash Ext. P8 without producing the order based on which the press release was issued, it is to be noted that, as per Section 8(3) of the Act, all orders and decisions of the Commission are to be authenticated by the Member – Secretary or any other duly authorized officer of the Commission. In so far as the 6[th] respondent does not have a case that a copy of the order under Section 8(3) was issued to the petitioner, the challenge on that premise can only be rejected. For the aforementioned reasons, the writ petition is allowed. The enquiry ordered against the petitioner as per Ext. P6 is declared to be illegal. Consequently, the third W.P.(C)s.22302 & 21572/2021 17 respondent is directed not to proceed with the enquiry. This judgement does not interdict the 6[th] respondent from resorting to appropriate legal remedies with respect to he alleged incident on 22.09.2021. ## **WP(C) 22302 of 2021** This writ petition is filed by the 6[th] respondent in W.P.(C) No. 21572 of 2021, seeking to take further action on Ext. P4 proceedings of the Commission, directing the State Police Chief to conduct an enquiry against the petitioner in W.P.(C) No.21572 of 2021 and take disciplinary action against him. As I have allowed W.P.(C) No.21572 of 2021 and declared the direction to be illegal, the prayers herein are rendered infructuous. The writ petition is dismissed accordingly. Sd/- ## **V.G.ARUN** **JUDGE** sb W.P.(C)s.22302 & 21572/2021 18 ## **APPENDIX OF WP(C) 21572/2021** ## PETITIONER EXHIBITS |Exhibit P1|A TRUE COPY OF THE COMPLAINT FILED BY MR.| |---|---| ||VIJAY KUMAR DATED 08.03.2021.| |Exhibit P2|A TRUE COPY OF THE FIR NO. VC 02/2021/IDK OF| ||VIGILANCE AND ANTI-CORRUPTION BUREAU, IDUKKI| ||UNIT POLICE STATION DATED 09.03.2021.| |Exhibit P3|A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE| ||6TH RESPONDENT BEFORE THE 2ND RESPONDENT| ||DATED 21.03.2021.| |Exhibit P4|A TRUE COPY OF THE COMPLAINT PREFERRED BY THE| ||6TH RESPONDENT BEFORE THE 1ST RESPONDENT| ||DATED 18.04.2021.| |Exhibit P5|A TRUE COPY OF THE ORDER IN LIEU OF NOTICE| ||ISSUED BY THE 1ST RESPONDENT TO THE 3RD| ||RESPONDENT DATED 26.04.2021.| |Exhibit P6|A TRUE COPY OF THE ENQUIRY REPORT DATED| ||20.05.2021 SUBMITTED BY THE 3RD RESPONDENT.| |Exhibit P7|A TRUE COPY OF THE NOTICE DATED 5.8.2021| ||ISSUED BY THE 1ST RESPONDENT TO THE 3RD| ||RESPONDENT.| |Exhibit P8|A TRUE COPY OF THE PRESS RELEASE DATED| ||23.9.2021 ISSUED FROM THE OFFICE OF THE 1ST| ||RESPONDENT.| |Exhibit P9|A TRUE COPY OF THE COMMUNICATION SENT FROM| ||THE 4TH RESPONDENT TO THE ADDITIONAL CHIEF| ||SECRETARY, VIGILANCE DEPARTMENT DATED| ||29.10.2019.| W.P.(C)s.22302 & 21572/2021 19 ## **APPENDIX OF WP(C) 22302/2021** PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE COMPLAINT GIVEN TO THE| |---|---| ||SUPERINTENDENT OF VIGILANCE DATED 21.3.2021| |Exhibit P2|TRUE COPY OF THE COMPLAINT BEFORE THE| ||COMMISSION FOR SC/ST DATED 18.4.2021| |Exhibit P3|TRUE COPY OF THE COMPLAINT BEFORE THE| ||COMMISSION SC/ST DATED 22.9/2021| |Exhibit P4|TRUE COPY OF THE ORDER OF THE COMMISSION| ||SC/ST DATED 23.9.2021| |Exhibit P5|TRUE COPY OF THE PETITION SUBMITTED BEFORE| ||THE 1ST RESPONDENT DATED 16.8.2021|