Sajitha S.T. v. Kerala State Human Rights Commission and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **&** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` MONDAY, THE 20[TH] DAY OF MARCH 2023 / 29TH PHALGUNA, 1944 ``` ## **`WP(C) NO. 8948 OF 2018`** ## **`PETITIONER:`** ``` SAJITHA S.T. AGED 37 YEARS, WIFE OF K.B ANOOP, KALATHIPPARAMBIL, C.M.C.X, CHERTHALA-688 524. ``` ``` BY ADV SRI.V.L.SHENOY ``` ## **`RESPONDENTS:`** ``` 1KERALA STATE HUMAN RIGHTS COMMISSION, OFFICE OF THE HUMAN RIGHTS COMMISSION, P.M.G JUNCTION, THIRUVANANTHAPURAM-695 033. ``` ``` THE CAUSE TITLE OF WPC AMENDED BY CORRECTING THE STATUS OF THE 1ST RESPONDENT AS PER ORDER DATED 19.07.2018 IN IA NO.11619/2018. ``` ``` 2THE SECRETARY THANNEERMUKKOM GRAMA PANCHAYTH, THANNEERMUKKOM-688 521. ``` ``` 3A.K SADANANDAN AYYAMKOVIL, THANNEERMUKKOM GRAMA PANCHAYATH, DOOR NO.689/VII, THANNEERMUKKOM-688 521. ``` ``` BY ADVS. SRI.S.SUBHASH CHAND SRI.DARSHAN SOMNATH SRI.M.P.JOSEPH ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C)No.8948 of 2018** **2** ## **JUDGMENT** Dated this the 20[th ] day of March, 2023 ## **S.Manikumar, C.J.** Instant writ petition is filed by the petitioner seeking the following reliefs: - “(i) To declare that the 1[st] respondent has no jurisdiction or authority to pass Ext.P8 order and to quash the same; - (ii) To issue a writ of certiorari or any other appropriate writ or direction to call for the records that culminated in Ext.P8; - (iii) To pass any other appropriate order or direction to meet the ends of justice, equity and good conscience.” 2. Short facts leading to the filing of the writ petition are as ## under: 2.1. The petitioner is working as an Upper Division Clerk in Thanneermukkom Grama Panchayat – 2[nd] respondent. On the complaint of 3[rd] respondent, Kerala State Human Rights Commission found the petitioner guilty of improper behaviour, and accordingly, ordered for initiation of disciplinary action against her. - 2.2. Though the alleged incident took place in June, 2016, **W.P.(C)No.8948 of 2018** **3** the 3[rd] respondent filed a complaint before the 1[st] respondent on 19.02.2017 (Exhibit P3), after a lapse of almost 8 months. The 1[st] respondent entertained Exhibit P3, without jurisdiction and passed Exhibit P8 order, without giving opportunity to the petitioner. 2.3. It is contended that while passing Exhibit P8 order, 1[st] respondent overlooked the provisions of Section 13 of the Protection of Human Rights Act, 1993, as also the Kerala Panchayat Raj (Custody of Records and Issue of Copy) Rules, 1998, apart from Ombudsman for Local Self Government Institutions (Inquiry of Complaints and Service Conditions) Rules, 1999 and the Tribunal for the Kerala Local Self Government Institutions Rules, 1999. 3. Grounds on the basis of which the writ petition is filed, are reproduced: “B. The 1[st] respondent in blatant violation of the provisions of the Local Self Government Act and the Rules made thereunder usurped the inherent powers of "Ombudsman" and the "Tribunal" created under the special statute viz., Ombudsman for Local Self Government Institutions (Inquiry of Complaints and Service Conditions) Rules, 1999, as also the Tribunal for the Kerala Local Self Government Institutions Rules, 1999. **W.P.(C)No.8948 of 2018** **4** C. No fair and reasonable opportunity was given to the petitioner in projecting her case and that such lopsided approach adopted by the 1[st] respondent is no less an act of negation of Rule of law and the procedure established by law thereby paving way for infringement of valuable right guaranteed under Articles 14 and 21 of the Constitution of India. The petitioner's right to lead a meaningful existence with dignity as enshrined in Article 21 of the Constitution of India is put in peril on account of the unbridled powers exercised by the 1[st] respondent without jurisdiction. D. The impugned order under challenge is instrumental in creating an indelible subliminal scar on the character and career of the petitioner, who is hailing from the lowest strata of the society.” 4. Heard the learned counsel for the parties and perused the material available on record. 5. Relevant portion of Exhibit P8 order dated 6.2.2018, passed by the Human Rights Commission is reproduced hereunder: “The complainant is a senior citizen and that he is the President of the Thanneermukkom Co-operative Bank. The decency ought to have been shown to an ordinary citizen should have been shown to the senior citizens. It is not done so. It is also seen the provisions of the Right to Service has also not been complied with in an application submitted on 9-6-2016 and approached the office on 16-6-2016. If it is a delay the matter should have been brought to the notice of the **W.P.(C)No.8948 of 2018** **5** complainant who is residing a kilometer away from the panchayat office. If this is the fate of a senior citizen and public man who is the President of the Cooperative Bank what would have been the fate of a common man approaching the office. The complacency and inertia of the officers of the panchayat and the secretary cannot be justified and the same is not a credit to the officers. The senior clerk on her own subjected to disciplinary action. As the matter stand thus disciplinary action may be initiated against Sajitha S.T. and the action taken report may be intimated to this Commission within a period of 3 months from today. This direction is given to the Deputy Director of the Panchayat as also the Secretary of the Grama Panchayat.” ## 6. Section 13 of the Protection of Human Rights Act, 1993, speaks about powers relating to enquiries and it reads as under: (1) The Commission shall, while inquiring into complaints under this Act, 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 witnesses and examining them 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; (e) issuing commissions for the examination of witnesses or documents; (f) any other matter which may be prescribed. **W.P.(C)No.8948 of 2018** **6** (2) The Commission shall have power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the Commission, may be useful for, or relevant to, the subject matter of the inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of section 176 and section 177 of the Indian Penal Code (45 of 1860). (3) The Commission or any other officer, not below the rank of a Gazetted Officer, specially authorised in this behalf by the Commission may enter any building or place where the Commission has reason to believe that any document relating to the subject matter of the inquiry may be found, and may seize any such document or take extracts or copies therefrom subject to the provisions of section 100 of the Code of Criminal Procedure, 1973 (2 of 1974), in so far as it may be applicable. (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 (45 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, 1973 (2 of 1974), 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 has been forwarded to him under section 346 of the Code of Criminal Procedure, 1973. (5) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196, of the Indian Penal Code (45 of 1860), and the Commission shall be deemed to be a civil court **W.P.(C)No.8948 of 2018** **7** for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). [(6) Where the Commission considers it necessary or expedient so to do, it may, by order, transfer any complaint filed or pending before it to the State Commission of the State from which the complaint arises, for disposal in accordance with the provisions of this Act: Provided that no such complaint shall be transferred unless the same is one respecting which the State Commission has jurisdiction to entertain the same. (7) Every complaint transferred under sub-section (6) shall be dealt with and disposed of by the State Commission as if it were a complaint initially filed before it.” 7. In similar circumstances, a Hon’ble Division Bench of this court in **Thrissur Corporation v. Jose K.R. and Others** reported in 2022 (4) KLT 868, after extracting relevant provisions ie., Sections 271 O, 271 F(b) and (e) and 271 J of the Kerala Panchayat Raj Act, 1994 and the decision in **Jose V. Jacob v. Thalayolaparambu Grama Panchayat and Others** [2016 (1) KLT ## 362], held as under: “19. Taking into consideration the statutory provisions extracted supra and the decision of the Hon'ble Division Bench in **Jose** (supra), we have no hesitation to hold that Complaint No. 1610/2014 A preferred by respondent No.1, after the constitution of the Ombudsman against the Secretary of Thrissur Corporation, is clearly barred by Section 271O of the Act, 1994. Therefore, the impugned Ext. P1 order dated 14.10.2019 passed by the Lok Ayukta is without **W.P.(C)No.8948 of 2018** **8** jurisdiction and the same requires to be set aside. Accordingly, we set aside Ext. P1 order dated 14.10.2019 passed by the Kerala Lok Ayukta in Complaint No. 1610/2014 A against the Secretary of the Thrissur Corporation, the petitioner herein.” 8. Giving due consideration to the facts on hand, we are of the view that the said decision squarely applies to the case on hand. 9. That apart, it could be seen from the affidavit dated 29.06.2017 of the writ petitioner that she has categorically explained the action taken by her, in particular, the delay alleged. 10. For brevity, Exhibit-P5 affidavit dated 29.06.2017 is reproduced hereunder: “Before the Hon'ble State Human Rights Commission ## Affidavit I, Sajitha S.T., Senior Clerk attached to the office of the Thanneermukkom Grama Panchayat, beg to submit this affidavit in response to the complaint of Sri. A.K. Sadanandan, Ayyankovil House, Ward No.VII of Thanneermukkom Grama Panchayat. Sir, I am the Senior Clerk dealing with building section of the Panchayat. Sri. A.K. Sadanandan, Ayyankovil House, Thanneermukkom had made an application bearing No.D8187/2016 on 09-06-2016 at the front office of the Panchayat. After due verification through the enquiry officer the residential certificate was prepared on the self-same day. Since the Secretary of the Panchayat was away at Thiruvananthapuram in connection with a training programme under the **W.P.(C)No.8948 of 2018** **9** auspicious of "Sanjaya Building Tax Soft Ware", no certificate could be issued on that day itself. The Secretary could sign the residential certificate only on 13-06-2016. Residential certificate, ownership certificates, BPL Certificates and Coir Workers Certificates are being issued after having obtained the ratification of the Secretary. Secretary verified the residential certificate prepared on 9-6-2016 only on 13-6-2016. The applicant approached the office to collect the residential certificate in between 9-6-2016 and 13-6-2016. Since the ratification from the Secretary was not obtained the same could not be handed over to the applicant. I never misbehaved or used outlandish or invective words with the petitioner. Nor used offensive language. Thanneermukkom Panchayat consisted of 23 wards and that there are more than seventeen thousand buildings. On an average the panchayat, receives per day not less than 30 applications for residential or ownership certificates. Apart from this, every day the Panchayat receives Building Permits, allocation of numbers to the buildings, BPL Certificates, application under Right to Information and auction relating to the building belonging to the Panchayat. The certificates are not being sent through post. Since my father expired on 2606-2016, I had to avail leave off and on. The certificate was ready on 13-06-2016. There is no deliberate delay or laches on my part. To a question posed by the petitioner as to the signature of the Secretary (in the residential certificate) I said "I can't say". If such expression is found to be outlandish the same may kindly be condoned. The application submitted by the applicant and ancillary document along with the residential certificate duly signed by the then Secretary on 13-6-2016 are produced. 29-6-2017” 11. With due respect, Kerala State Human Rights Commission has not adverted to the averments made in the above affidavit. ## 12. Giving due consideration to the material on record, this **W.P.(C)No.8948 of 2018** **10** Court is of the view that there is no dereliction on the part of the writ petitioner, in discharging her duties. There was no delay on her part in discharging the duties. 13. In the light of the above decision and discussion, we are of the view that Exhibit P8 order passed by the Kerala State Human Rights Commission is, without jurisdiction, and on the merits of the case, the complainant/3rd respondent herein, has not substantiated the allegations. Accordingly, we set aside the same. Writ petition is allowed as above. Pending interlocutory applications, if any, shall stand closed. Sd/- **S. Manikumar Chief Justice** Sd/- ## **Murali Purushothaman** **Judge** **vpv** **W.P.(C)No.8948 of 2018** **11** ## **`APPENDIX OF WP(C) 8948/2018`** ``` PETITIONER EXHIBITS ``` - `EXHIBIT P1` - `COPY OF THE PETITION DATED 09.06.2016 SUBMITTED BY THE 3RD RESPONDENT AND ENGLISH TRANSLATION.` - `EXHIBIT P2 COPY OF THE CERTIFICATE NO.D/8187 DATED 09.06.2016 ISSUED BY THE 2ND RESPONDENT AND ENGLISH TRANSLATION.` - `EXHIBIT P3 COPY OF THE APPLICATION DATED 19.02.2017 SUBMITTED BY THE 3RD RESPONDENT AND ENGLISH TRANSLATION.` - `EXHIBIT P4 COPY OF THE SUMMONS DATED 08.05.2017 ISSUED BY THE 1ST RESPONDENT.` - `EXHIBIT P5 COPY OF THE AFFIDAVIT DATED 29.06.2017 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT AND ENGLISH TRANSLATION.` - `EXHIBIT P6 COPY OF THE AFFIDAVIT DATED 29.06.2017 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT AND ENGLISH TRANSLATION.` - `EXHIBIT P7 COPY OF THE NEWS ITEM PUBLISHED IN MATHRUBHUMI DAILY DATED 27.02.2018 AND ENGLISH TRANSLATION.` - `EXHIBIT P8 COPY OF THE ORDER NO. HRMP 2280/2017 DATED 06.02.2018 PASSED BY THE 1ST RESPONDENT AND ENGLISH TRANSLATION.` //true copy// P.A. to Judge