- 1 - R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE10H DAY OF AUGUST, 2015 BEFORE THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI WRIT PETITION No.102268/2015 (GM-RES) BETWEEN: Nagayya, S/o. Chandrashekhar Kadadevar Age:
32. years, Occ: Police Sub-Inspector R/o. Rannebennur Rural Police Station Rannebennur. … Petitioner (By Sriyuths K. L. Patil & S. S. Beturmath, Advocates) AND:
1. The State of Karnataka Through Secretary, Home Department Vidhan Soudha, Bangalore.
2. The Karnataka Human Rights Commission Rep. by Secretary M. S. Building, Dr. B. R. Ambedkar Road Bangalore 560 001 3. M. Sandeep Muniswamy Age: Major, Occ: Not Known R/o. No.14, Daneshwar Nagar - 2 - Gopanakoppa Near St. John’s Polytechnic Hubli. (By Sri M. Kumar, AGA for R1; Sri H. R. Kambiyavar, Advocate for R2; Sri Jhankumar Kalangi, Advocate for R3) --- ... Respondents This writ petition is filed under Articles 226 and 227 of the Constitution Of India praying to quash the impugned order dated 27.01.2014 passed in H.R.C.No.4750/TC-73 of 2012 on the file of Karnataka State Human Rights Commission, Bangalore, produced at Annexure-D. This petition coming on for preliminary hearing ‘B’ group this day, the Court made the following: ORDER
The petitioning Police Sub-Inspector has called into question the order, dated 27.01.2014 (Annexure-D) passed by the Karnataka State Human Rights Commission, Bangalore in HRC No.4750/TC- 73/12.
2. The facts of the case in brief are that when the third respondent and his associate, Mr. Isaac Gopali were propagating their religion on 28.06.2011 in Sharavati Nagar, Hubli, they were abused and attacked by the local people. It is the grievance of the - 3 - third respondent that the Police, who came to the spot, did not save him from being abused and assaulted. His further grievance is that the complaint lodged by him (the third respondent) against the persons, who abused and assaulted him, was not registered by the Police for a period of eight days. He lodged the complaint with the National Human Rights Commission, which in turn, referred the matter to the State Human Rights Commission, the respondent No.2 herein, for inquiry. The State Human Rights Commission referred the matter to the Inspector General of Police (‘the IGP’ for short) for investigation. The IGP submitted the report, stating, interalia, that (i) there is a delay of eight days in registering the complaint lodged by the third respondent and (ii) the Police did not arrange for the medical examination of the third respondent. On considering the material and affording an opportunity of hearing to the petitioner, the second respondent Commission passed the impugned order calling upon the Government to initiate the disciplinary action against the petitioner for his failure to register - 4 - the FIR and for abetting the violation of human rights of the third respondent and of others. It also recommended to the Government of Karnataka to pay the compensation of Rs.20,000/- to the third respondent and recover the same from the salary of the petitioner.
3. Sri K. L. Patil, learned counsel for the petitioner submits that the third respondent has indeed admitted that he had been given protection in the Police Station. He submits that it is the Police Inspector, who is responsible for the registration of the complaint. If the Police Inspector, in his capacity as the S.H.O., has not registered the complaint, the petitioner, who is only a Sub- Inspector, cannot be held responsible for it. He submits that when on the basis of an identical reply, the Police Inspector is exonerated, there is no reason as to why the petitioner, who is the Sub- Inspector, has to be punished or penalised.
4. He submits that under Section 36(2) of the Protection of Human Rights Act, 1993 (‘the said Act’ for short) the second respondent Commission cannot inquire into any matter after the - 5 - expiry of one year from the date on which an act constituting the violation of human rights is alleged to have been committed. He submits that in the instant case, the alleged incident took place on 28.06.2011 and the impugned order is passed on 27.01.2014.
5. Sri M. Kumar, learned Addl. Government Advocate appearing for the respondent No.1 submits that the impugned order is only in the nature of recommendations. The Commission has sent its inquiry report together with its recommendations to the Government as per Section 18(e) of the said Act. Based on the said recommendations, the Government is yet to take a decision as to whether the disciplinary proceedings are to be initiated. He submits that the compensation awarded by the Commission is already given by the Government to the third respondent. If the Government were to pass any order for the recovery of Rs.20,000/- from the petitioner’s salary, it is then that the petitioner can approach either the Appellate Authority or Karnataka Administrative Tribunal.-. 6 - 6. Sri Kumar submits that there is a delay of over one year on the part of the petitioner in approaching this Court and that the delay is not at all explained in the memorandum of the writ petition.
7. Sri Kambiyawar, learned counsel for the second respondent Commission submits that the complaint is filed with the National Human Rights Commission within one year from the date of the incident. He submits that one year period prescribed under Section 36(2) of the said Act is only for receiving the complaint and not for holding or completing the inquiry.
8. Sri Kalangi, learned counsel for the third respondent submits that the said respondent belongs to a minority religion. For professing the religion to which he belongs and for preaching its tenets, the crowd had beaten the third respondent in the presence of the Police. He submits that the third respondent received multiple injuries. Because of the inflicting of the blows on his ear, his hearing capacity is damaged.-. 7 - 9. The submissions of the learned counsel have received my thoughtful consideration.
10. When the second respondent Commission has held the inquiry and sent its report with its recommendations and when there are no infirmities in the process or proceedings, the question of quashing the impugned order would not arise. Besides, the impugned order is in the nature of recommendations based on the report of the I.G.P. It is also not in dispute that the opportunities of hearing were afforded to the petitioner as prescribed by Section 16 of the said Act. The argument now raised is that the impugned proceedings are timed-barred. I do not see any foundation for this argument. The petitioner did not raise such an objection while submitting his reply to the Commission. Further, the ground of limitation is not even taken in the memorandum of writ petition. Nonetheless, I propose to examine it notwithstanding the non- existence of the foundation in the pleadings, as the petitioner’s side is assiduously raising the question of law.-. 8 - 11. What Section 36(2) of the said Act states is that the Commission shall not inquire into any matter after the expiry of one year from the date on which the act constituting the violation of human rights is alleged to have been committed. But this does not mean that the inquiry cannot be held or completed after one year of the taking place of the alleged act or incident. Section 36(2) of the said Act only prohibits the filing of the complaint after one year from the date of the incident. If any other interpretation is put on Section 36(2) of the said Act, then the progressive, protective and remedial legislation would be reduced to futility. What if the Commission sits on the complaint for one year?. The complaint cannot be deprived of life on account of the delay in inquiring into the matter.
12. I may usefully refer to the Division Bench judgment of Patna High Court in the case of Alok Vs. Bihar State Human Rights Commission and Others reported in AIR2012PATNA - 9 - 13. The relevant portions of the said decision are extracted hereinbelow: “ 5………It appears to us that sub-section (2) prescribes the bar of limitation beyond which SHRC cannot entertain a complaint. The complaint must be received by the NHRC or the SHRC within a period of one year from the date on which the act constituting violation of human rights is alleged to have been committed. In the instant case, the act had taken place on 10.4.2008, and the SHRC had passed the first order on 30.4.2009, deciding to proceed with the matter. The construction put by the appellant on sub-section (2) of Section 36 of the Act is to the effect that the final order should be passed by the Commission within a period of one year commencing from the date of the alleged act and, in our view, most untenable. Submission of the complaint petition is within the control of the complainant, but its disposal by the Commission is not in his control. If such a construction as has been suggested by the appellant were upheld, most of the complaints if not all, will be dismissed on the ground of delay. A lot of time is taken in service of notices, and in completing the pleadings. The adjudication under the Act may necessitate reports from the concerned authorities, or evidence………..-. 10 - 7. If we were put the construction suggested by the appellant on Section 36(2), not one complaint or petition against the Government would be adjudicated. All of them would become time-barred, and violations of human rights would go unchecked and unpunished. Does it need any emphasis that preparation of a case for its final adjudication will take a minimum time, apart from the position that it has to join a long queue of pending cases?. Learned counsel for the appellant has relied on the judgment of the Supreme Court in N.C. Dhoundial vs. Union of India (AIR2004SC1272 (supra). The facts of that case stood on a fundamentally different footing. Whereas the complaint in the present case was filed well in time, the complaint in that case was filed after expiry of four years as a result of which the Supreme Court held that it was time-barred. The contention advanced on behalf of the appellant is rejected.” 13. The Division Bench judgment of Madras High Court in the case of T. Venkateswaran Vs. Muthuraj and Others, reported in AIR2009MADRAS60has expressed the considered view that if a petition is filed by an aggrieved person before the Commission within one year form date of the incident, the period - 11 - must stop running. Once the complaint is lodged with the Commission, the time the Commission will take to enquire into the allegations by issuing the summons does not depend on the person lodging the complaint. I have no hesitation in holding that the construction being put on Section 36(2) of the said Act by the learned counsel for the petitioner makes the whole Act unworkable.
14. This petition is liable to be dismissed for one simple reason. None of the rights of the petitioner are infringed. It is only when the competent authority imposes the punishment on the delinquent employee that he gets the firm cause of action to approach the Court. There cannot be any challenge to the issuance of a mere show cause notice, report, charge-sheet, etc. In saying so, I am fortified by the Apex Court’s judgment in the case of Union of India and Anr. Vs. Kunisetty Satyanarayana reported in AIR2007SC906 The portion under Head Note A is extracted hereinbelow: - 12 - “Ordinarily no writ lies against a charge-sheet or show cause notice. The reason why ordinarily a writ petition should not be entertained against a mere show cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.” 15. In its decision in the case of Secretary, Ministry of Defence and Others Vs. Prabhash Chandra Mirdha reported in (2012) 11 SCC565 the Apex Court has this say in paras 8 and 12: “8. The law does not permit quashing of charge-sheet in a routine manner. In case the delinquent employee has any - 13 - grievance in respect of the charge-sheet he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon. In case the charge-sheet is challenged before a court/tribunal on the ground of delay in initiation of disciplinary proceedings or delay in concluding the proceedings, the court/tribunal may quash the charge-sheet after considering the gravity of the charge and all relevant factors involved in the case weighing all the facts both for and against the delinquent employee and must reach the conclusion which is just and proper in the circumstance.
12. Thus, the law on the issue can be summarized to the effect that the charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings.” - 14 - 16. Considering the ratio laid down by the Apex Court in the aforementioned cases and also considering the gravity of the allegations, I do not propose to interfere in the matter at this stage.
17. If it is the defence of the petitioner that he was not in charge of receiving and registering the complaint or that he had made every possible endeavour to protect the third respondent and his associate, it is open to him to establish the same in the course of the full-pledged domestic inquiry, if ordered. On the ground that the Police Inspector is exonerated by the Commission, the petitioner cannot seek his exoneration.
18. Allusion to secularism would not be out of context here. The Preamble to the Constitution of India is the lodestar. The preamblur vision is to constitute India into a Sovereign Socialist Secular Democratic Republic. Freedom of conscience and free profession, practice and propagation of religion are guaranteed by Article 25 of the Constitution of India.-. 15 - 19. What follows from the Preamble and Article 25 is that the Government is neither religious nor irreligious nor antireligious. It is only ‘areligious’. In India, the State is secular as there is no official religion. As held by the Apex Court in the case of Bommai S. R. Vs. Union of India, reported in AIR1994SC1918 secularism under the Indian Constitution does not mean anti-God or atheist society. It only means the equal status of all religions, without any preference in favour of or discrimination against any one of them.
20. Secularism in the Indian context basically means “¸ÀézsÀªÀÄ𠤵É×, ¥ÀgÀzsÀªÀÄð ¸À»µÀÄÚvÉ”. The Hon’ble Supreme Court has this to say in its judgment in the case of Commissioner of Police and Others Vs. Acharya Jagadishwarananda Avadhuta and Another reported in (2004) 12 SCC770 64. Whilst our Constitution is neutral in religion, it at the same time, is benign and sympathetic of all religious creeds however unacceptable they may be in the eyes of the non-believers.-. 16 - Articles 25 and 26 embody a tolerance to all religions. This Court has rightly said "Our tradition teaches tolerance; Our philosophy preaches tolerance; Our Constitution practices tolerance; Let us not dilute it: It is in that spirit of tolerance that creeds like the Petitioner with their practices must be accepted in our society".
70. Subject to consideration of public order, health and morality, it is not open for anybody to question the tenets and practices of religion, however, irrational they may appear to an outsider.
21. If somebody wants to practise/propagate a particular religion, he cannot be attacked by persons belonging to any other denomination or religion or faith. He is entitled to every possible protection at the hands of the Police. The Police cannot abdicate their responsibility of protecting the individuals, who are exercising the rights guaranteed under Article 25 of the Constitution of India. Further, the protection guaranteed under Article 25 is not confined to matters of doctrine, but extends to acts done in exercise of the right to profess, practise and propagate religion freely. Viewing the - 17 - matter in this perspective, I also deem it just and necessary to observe that the State Government has to consider further compensating the third respondent, if he proves that his hearing capacity is damaged on account of the attack on him for his propagating/professing a particular religion.
22. This petition is accordingly disposed of. Sd/- JUDGE gab/-