The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.15344 of 2019 Kalisethy Tirupati @ Tirupati Kalisethy …. Petitioner Mr. S.K. Dash, Advocate -versus- State Commissioner for Women & Ors. ….
Legal Reasoning
Opposite Parties Mr. S. Rath, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 15.03.2024 Order No 04. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. At the outset learned counsel for the Petitioner contended that no reply is required to be filed against the counter affidavit filed by the Opp. Parties. 3. Heard Mr. S.K. Dash, learned counsel appearing for the Petitioner and Mr. S. Rath, learned Addl. Standing Counsel appearing for the Opp. Parties. 4. Petitioner has filed the present writ petition inter alia with the following prayer:- “Under the circumstance, the Petitioner most humbly prays that this Hon’ble Court be graciously pleased to admit the writ petition, issue rule nisi calling upon the opposite parties to show cause as to why the impugned letters dtd 8/4/2019 and 1/5/2019 respectively under annexure 3 and 4 shall not be // 2 // declared as illegal and arbitrary and without jurisdiction of the Opp. Party No. 1 to pass the same. If the opposite parties failed to show cause or show insufficient cause the Hon’ble Court may be pleased to make the rule absolute and be pleased to quash the impugned letter under annexure No.3 and 4; And/or pass any other order/orders, direction/directions as this Hon’ble Court may deem fit and proper in the ends of justice and equity, And for this act of kindness the petitioners as in duty bound shall ever pray.” 5. It is contended that Odisha State Commission for Women has got no authority to direct for deduction of maintenance amount from the salary of the Petitioner in terms of the impugned letters issued under Annexure-3 & 4. 5.1. In support of his submission Mr. Dash, learned counsel for the Petitioner relied on an order passed by the Hon’ble Apex Court in the case of Bhabani Prasad Jena Vs. Convenor Secretary, Orissa State Commission for Women & Anr. reported in 2012(II) OLR SC 575. Hon’ble Apex Court in Para 8 of the Judgment has held as follows:- “8. It would be seen from Section 10 of the 1993 Act that the State Commission has been authorized to take up studies in respect of economic, educational and health situation of the women of the State and also the working conditions of women in the factories, establishments, construction sites and make its recommendations the State Government. The State Commission is empowered to compile information in respect of the offences against women and to coordinate with the State Cell and District Cells for atrocities against women. Further, the State Commission is competent to receive complaints in respect of the matters specified in Section 10(1)(d) and take up the grievances raised in the complaint/s with the concerned authorities for appropriate remedial measures. The State to Page 2 of 6 // 3 // Commission is also given role of assisting, training and orienting the non-Government organization in the State in legal counseling of poor women and enabling such women to get legal aid. Under clause (f) of Section 10(1), the State 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 these matters for remedial action. In other words, the State Commission is broadly assigned to take up studies on issues of economic, educational and healthcare that may help in overall development of the women of the State; gather statistics concerning offences against women; probe into the complaints relating to atrocities on women, deprivation of women of their rights in respect of minimum wages, basic health, maternity rights, etc. and upon ascertainment of facts take up the matter with the concerned authorities for remedial measures; help women in distress as a friend, philosopher and guide in enforcement of their legal rights. including to receive complaints However, no power or authority has been given to the State Commission to adjudicate or determine the rights of the parties. Mr. Ranjan Mukherjee, learned counsel for respondent no. 2 submitted that once a power has been given to the State Commission the matter concerning deprivation of women of their rights, it is implied that the State Commission is authorized 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. Learned counsel for respondent no. 2 then referred to Section 10(3) and submitted that the State Commission has been conferred with all the powers of a Civil Court trying a suit. We are afraid, this is not at all proper reading of Section 10(3). The expression, have all the powers of a Civil Court’ in Section 10(3) is qualified by the following words, in respect of the following matters. That is to say, the State Commission has powers of Civil Court trying a Page 3 of 6 // 4 // suit for the matters specified in clauses (a) to (1) thereof and not for other purposes. It is clear to us that the Legislature has not gone so far as to give jurisdiction to the State Commission to make an order such as the one that has been made. From whatever angle we may examine the validity of the directions given by the State Commission in its order dated May 11, 2009, it appears to us that the said order was outside the jurisdiction, power or competence of the State Commission. It was an order which the State Commission had no competence to make and, therefore, a void order. The High Court instead of correcting that order went a step further and directed that DNA of the child as well as the appellant shall be conducted.” 5.2. Mr. Dash also relied on another decision of this Court in the case of (Smt.) Tomala Sahu @ Tamal Sahu & three Ors. Vs. State of Odisha & Ors. reported in 2019(II) ILR 850. This Court in Para 6 of the said order has held as follows:- “6. Considering the rival contentions of the parties, this Court through the Orissa State Commission for Women Act, 1993 finds Section 10(1)(d) read with Section 10(3) of the Act finds, the Commission has the following powers :- "10.(1) The Commission shall perform all or any of the following functions. Commission, namely:" XXX XXX XXX (d) receive complaints on" (i) atrocities on women and offences against women, ii) deprivation of women of their rights relating to minimum wages basic health and maternity rights, (iii) non-compliance of Policy decisions of the Government relating to women, (iv) rehabilitation of deserted and destitute women and woman forced into prostitution, (v) atrocities on women in custody and take up with authorities concerned for appropriate remedial measures, XXX XXX XXX Page 4 of 6 // 5 // (3) The Commission shall while investigating any matter referred to in clause (a) or clause (d) of sub-section (1) 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 par of India and examining him on oath; (b) requiring document; the discovery and production of any (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 witness and documents; and (f) any other matter which may be prescribed." Reading the aforesaid provisions, this Court finds, the Commission has the only power to receive complaint under Section 10(1)(d) of the Act and further to investigate the matter under Sub-Section (3) of Section 10 of the Act and for the limited role of the Commission involving Section 10(1)(a). it has to refer its recommendation on the basis of such investigation for the action being taken by the competent authority. In view of the limited scope under the provision of the Act, 1993, this Court finds, the direction given by the Commission under Annexure-3 is without competency of the Commission.” 5.3. Placing reliance on the aforesaid orders, it is contended that the impugned letters issued by the Odisha State Women Commission- Opp. Party No. 1 under Annexure-3 & 4 are not sustainable in the eye of law. 6. Learned Addl. Standing Counsel also fairly accepted the contention raised by the learned counsel appearing for the Petitioner. 7. Considering the submission made and placing reliance on the decisions as cited (supra), this Court is also of the view that the Page 5 of 6 // 6 // Odisha State Commission for Women has no authority to issue the impugned letters in question. Therefore, this court is inclined to quash letters dtd.05.04.2014 and 01.05.2011 so issued by Opp. Party No. 1 under Annexure-3 & 4. While quashing the same, this Court allows the writ petition. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Mar-2024 10:42:00 Page 6 of 6