Sunday, 3 April 2016

Whether National commission for women can issue directions like court in matrimonial matters?

 A Division Bench of the High Court of Bombay in KPMG India Pvt.
Ltd. Vs. National Commission for Women MANU/MH/1256/2014 has also
held that the NCW cannot arrive at a conclusion or grant relief though can
make recommendations on the basis of such facts in the larger interest of
women. It was held that NCW has no jurisdiction to determine whether or
not there was an unfair dismissal or demand a letter of apology or direct
payment of compensation or grant relief by way of ordering payment of
bonus. It was reiterated that NCW functions in a recommendatory capacity
and is not an adjudicatory body and the provisions of Section 10(4) of the
NCW Act investing NCW with powers of a Civil Court do not entitle it to
arrive at findings of fact or to arrive at final conclusions or grant reliefs that a
Civil or Criminal Court can.
IN THE HIGH COURT OF DELHI AT NEW DELHI

 W.P.(C) No. 7359/2014 & CM No.17214/2014 (for stay)
KUNAL CHAUHAN 
Versus
NATIONAL COMMISSION FOR WOMEN
& ANR .
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
Dated;MARCH 31, 2016

1. This petition under Article 226 of the Constitution of India seeks
mandamus to the respondent No.1 National Commission for Women (NCW)
to recall its advisory dated 14th June, 2013 and seeks compensation in the
sum of Rs.75,49,958/- jointly and severally from the respondent No.1 NCW
and respondent No.2 Ms. Devika Singh.
2. The petition was filed pleading:
(i) that the respondent No.2 Ms. Devika Singh is the wife of the
petitioner;
(ii) that the petitioner is a Marine Engineer and was, at the time of
his marriage and thereafter employed with Mitsui O.S.K. Lines
Maritime (Indian) Pvt. Ltd.;
(iii) that disputes and differences arose between the petitioner and
the respondent No.2 Ms. Devika Singh and the respondent No.2 Ms.
Devika Singh filed a complaint against the petitioner with the Special
Unit of Women and Child of Crime Against Women (CAW) Cell of
Delhi Police which issued notice to the petitioner;
(iv) that the respondent No.2 Ms. Devika Singh also filed a petition
in the District Court at Saket, New Delhi against the petitioner under
the Protection of Women from Domestic Violence Act, 2005;
(v) that the respondent No.2 Ms. Devika Singh using her clout as a
Consultant to the National Mission for Empowerment of Women
under the Ministry of Women and Child Development filed a
complaint with the respondent No.1 NCW and the respondent No.1
NCW ignoring the fact that the CAW Cell of Delhi Police and the
District Court at Saket were seized of the disputes between the parties
and further ignoring the fact that all the properties of the petitioner are
in India and without complying with the principles of natural justice 
and giving the petitioner an opportunity of hearing, issued the
impugned advisory dated 14th June, 2013 to the High Commission of
India in Singapore, directing them to advise the employer of the
petitioner not to post the petitioner outside India and with a copy to
the employer of the petitioner;
(vi) that as a direct consequence of the aforesaid advisory, the
petitioner‟s employer aforesaid discontinued the services of the
petitioner vide their email dated 24th June, 2013, making the petitioner
unemployed;
(vii) that though the petitioner represented to the respondent No.1
NCW to withdraw their advisory but to no avail;
(viii) that finally the respondent No.1 NCW in response to
information sought by the petitioner under the Right to Information
Act, 2005 (RTI Act) furnished to the petitioner the complaint made by
the respondent No.2 Ms. Devika Singh and whereupon the advisory
aforesaid had been issued;
(ix) that the District Court, Saket and the CAW Cell of Delhi Police
have concluded that the respondent No.2 Ms. Devika Singh had taken
forcible possession of the petitioner‟s property in Noida, U.P.;
(x) that owing to the illegal acts of the respondents, the petitioner
has suffered loss.
3. The petition came up before this Court first on 31st October, 2014,
when while issuing notice thereof, it was prima facie observed that the action
of the respondent No.1 NCW of communicating directly with the employer
of the petitioner was an abuse of authority by the respondent No.1 NCW and
respondent No.1 NCW directed to consider withdrawing the letter dated 14th
June, 2013.
4. However, notwithstanding the aforesaid opportunity, the respondent
No.1 NCW did not withdraw the said advisory; this Court vide order dated
4
th December, 2014, expressing a prima facie opinion that the authority of
the respondent No.1 NCW extended only to taking up matters with the
appropriate authorities in accordance with law and that the respondent No.1
NCW in issuing the impugned advisory had acted beyond the scope of its
authority, stayed the operation of the impugned advisory till the disposal of
the petition.
5. Counter affidavits have been filed by the respondents and to which
rejoinders have been filed by the petitioner.
6. The counsel for the respondent No.1 NCW on 27th April, 2015
informed that the complaint of the respondent No.2 Ms. Devika Singh had
been closed by the respondent No.1 NCW. Taking note of the same, it was
observed that therewith the challenge in the petition to the advisory stood
satisfied and the respondent No.1 NCW was directed to write to the Indian
High Commission in Singapore about having closed the complaint and
having withdrawn the advisory.
7. The counsels for the parties were heard on 30th September, 2015 and
judgment reserved and permission sought to file written submissions
granted. The written submissions have been filed and perused.
8. Though in the manner aforesaid, the relief sought in the petition qua
the advisory dated 14th June, 2013 does not survive and only the claim of
petitioner for compensation is to be considered but I may notice:
(A) That the respondent No.1 NCW, neither in its counter affidavit
nor during the hearing nor in its written submissions, has referred to
any of the provisions of the National Commission for Women Act,
1990 (NCW Act) under which the respondent No.1 NCW has been
constituted and acting whereunder the impugned advisory was issued,
which authorised / empowered it to issue the same.
(B) NCW, being a statutory body, cannot claim or exercise any
inherent powers and can exercise only such powers as are prescribed
in the statute creating it, to be exercised by it; this Court in Bhupinder
Singh Vs. Delhi Commission for Women 137 (2007) DLT 411 held
that the Delhi Commission for Women constituted under the Delhi
Commission for Women Act, 1994 had no power for issuing any
direction for payment of maintenance – it was observed that though
the Commission had been vested with all the powers of a Civil Court
in carrying out investigation relating to safeguards provided for
women under the Constitution and other laws as also with regard to
matters relating to deprivation of women‟s rights but in the absence of
any power to pass order or direction for maintenance, the same could
not be inferred. It was observed that powers to grant interim orders
are vested in the Courts only.
(C) Section 10 of the NCW Act prescribes the functions, to perform
which, NCW has been created. The said functions, except for those
enumerated in Clause (f) of Sub-section (1) of Section 10, do not
pertain to adjudication of complaints / claims of women in individual
cases; they pertain to issues of women in general. Though Clause (f) 
of Sub-section (1) of Section 10 of the NCW Act makes it a function
of the respondent No.1 NCW, to inter alia look into complaints
relating to deprivation of women‟s rights aimed at mitigating
hardships and ensuring welfare and providing relief to women but
only to take up the issues arising therefrom with the appropriate
authorities. Under the said provision also, the respondent No.1 NCW
has not been authorised to become a Judge or an Arbiter in the
individual complaints of women. The same authorises NCW to, on a
complaint, take up the issues arising therefrom with the appropriate
authorities. The expression „appropriate authorities‟, in my opinion,
refers to authorities entrusted with the protection of women‟s rights
and implementation of laws or to resolve the issue in general arising
from the complaint. The same also does not empower NCW to
approach any authority or person or office as an agent of the
complaining woman and issue directions thereto. It cannot be lost
sight of that the respondent No.1 NCW being a statutory body, it‟s
direction or advisory would carry much more weight than a
complaint, if were to be directly made by the aggrieved woman. That
is what appears to have happened in the present case. The impugned 
advisory on the letterhead of the respondent No.1 NCW to the High
Commission of India in Singapore with copy to the employer of the
petitioner has been acted upon, resulting in the petitioner losing his
employment. In my opinion, no provision of Section 10 of the NCW
Act empowers the respondent No.1 NCW to take such an action.
(D) This Court in Vikram Sharma Vs. Union of India 171 (2010)
DLT 671 relied upon by the counsel for the petitioner held the action
of NCW, in that case of writing to the authorities for issuance of
Look-out Circular against the petitioner in that case, to be without the
authority of law and burdened NCW with compensation of
Rs.20,000/- and to ensure that such actions do not recur, directed
NCW to take steps in that regard. However, it appears that the
judgment aforesaid of this Court in Vikram Sharma has had no
impact on the respondent No.1 NCW.
(E) NCW, in its counter affidavit has however sought to draw
authority for its action impugned in this petition from the letter dated
28th April, 2009 of the Ministry of Overseas Indian Affairs,
Government of India. Vide the said letter, NCW was appointed as “the
co-ordinating agency at the national level, to receive and process all 
the complaints related to Indian women deserted by their overseas
Indian husbands”, in pursuance to the recommendation of the
Parliamentary Committee on Empowerment of Women (14th Lok
Sabha) on the “Plight of Indian Woman deserted by NRI husbands”, to
evolve a well defined / co-ordinated mechanism to deal with the issue
of problematic NRI marriages to enable the women to get respectable
solution to the problem. (I may notice that Section 10(1)(n) of the
NCW Act empowers the NCW to perform any other function which
may be referred to it by the Central Government). It is the stand of
NCW in its counter affidavit that upon the respondent No.2
complaining to its NRI Cell expressing apprehension that the
petitioner will attempt to get a posting outside India so as to avoid
resolving the matrimonial dispute and leaving her in distress, it was of
the “prima facie” view that in order to give justice to complaint made
by the respondent No.2, the petitioner should be available in India and
thus issued the impugned letter dated 14th June, 2013.
(F) I am afraid the NCW is misconstruing its functions in pursuance
to letter dated 28th April, 2009 of the Ministry of Overseas Indian
Affairs. The same also appoints NCW only as a co-ordinating agency 
at national level and does not, as indeed it cannot, empower NCW to
„on a prima facie view‟ or for that matter take a final view on
complaints received by it as to which of the warring spouses is at fault
and to use it‟s clout to inflict punishment on the spouse which
according to it is at fault. The role of NCW as a co-ordinating agency
is only to ensure that the women in distress are guided to “appropriate
agencies/authorities” empowered and constituted to take action on
their complaints and such agencies act on the complaint and that the
orders/directions issued by such agencies/authorities are in turn
implemented by other agencies/authorities empowered
/constituted/required to implement the same. The need for appointing
such a co-ordinating agency at national level was felt, as the
respondent No.1 NCW in its counter affidavit admits, owing to
technical difficulties being faced by such women in serving court
notices, process, orders outside the country and to assist the women in
the same. However NCW appears to have abrogated to itself the task
of the judge as well as of executing its own decisions and which it is
not entitled to. All that the NCW, on receipt of complaint from the
respondent No.2, could have done is to advise the respondent No.2 to
approach the police/court empowered to compel the presence of the
petitioner and to ensure that the police considered the
application/representation of the respondent No.2 in accordance with
law and/or to direct the petitioner to other governmental agencies
empowered to pass orders permitting the petitioner to remain abroad
and to file objections to grant of such permission if any to petitioner
and to ensure that orders passed by appropriate authorities are served
on the petitioner and implemented, again by agencies empowered in
law to implement them. Instead, NCW chose to adopt a procedure not
sanctioned in law. It cannot be forgotten that the petitioner is not an
overseas citizen but holding Indian passport and procedure exists in
law for compelling return of such person to India. The apprehensions
of respondent No.2 on which NCW acted thus had no basis and appear
to be guided by desire to cause harm to the petitioner and in which
NCW appears to have played along.
(G). This becomes further obvious from the respondent No.1 NCW
having not even pursued the complaint of the respondent No.2 Ms.
Devika Singh or taken it to its logical conclusion and having closed 
the same after, „on a prima facie view‟, causing damage to the
petitioner.
(H) In this regard, the averment of the petitioner of the respondent
No.2 Ms. Devika Singh at the relevant time working as a Consultant to
the National Mission for Empowerment of Women under the Ministry
of Women and Child Development and which averment has not been
disputed by the respondent No.2 Ms. Devika Singh becomes relevant.
The possibility of misuse of such position by the respondent No.2 Ms.
Devika Singh cannot be ruled out.
(I). The respondent No.1 NCW vide the impugned advisory dated
14th June, 2013 directed the High Commission of India in Singapore to
take up the matter with the employer of the petitioner, so that the
petitioner should not be posted to any foreign country, until he
resolves his matrimonial dispute with the respondent No.2 Ms. Devika
Singh. There is on record a response dated 16th July, 2013 of the High
Commission of India in Singapore to the respondent No.1 NCW to the
effect that it would be beyond its jurisdiction to force the employer of
the petitioner to deny employment to the petitioner or to terminate the
employment of the petitioner. The counsels for the respondents 
during the hearing also were unable to cite the authority of the High
Commission of India in Singapore to take such an action. The law by
which the respondent No.1 NCW has been constituted does not
empower the respondent No.1 NCW to do so. It is not understandable,
as to how the respondent No.1 NCW expected the High Commission
of India in Singapore to exercise the power which it had directed. The
only reason could be to do indirectly what could not be done directly,
by making a copy of the letter directly to the employer of the
petitioner.
(J) The action of the respondent No.1 NCW in the present case is
clearly found to be illegal, beyond its jurisdiction and perhaps guided
by the office which the respondent No.2 Ms. Devika Singh was at the
relevant time occupying.
9. I have devoted considerable time to the issue in the hope that the
respondent No.1 NCW would not, in future, act beyond its jurisdiction. The
respondent No.1 NCW does not appear to have given requisite heed to the
judgments aforesaid of this Court. Else, after the dicta in Vikram Sharma
and Bhupinder Singh supra, the respondent No.1 NCW should have been
cautioned and not acted as it did in issuing the advisory.
10. While on the subject, mention may also be made of certain other
judgments dealing with the subject.
11. This Court in U.S. Verma, Principal and Delhi Public School Society
Vs. National Commission for Women 163 (2009) DLT 557 held i) that
NCW was conceived of and functions as a national level body primarily
looking into the policy issues, to highlight them and recommend the
appropriate measures to the governments concerned; ii) it cannot, in
principle, look into individual issues unless they pose or concern a wider
policy or legislative structural dilemma which requires to be addressed; iii)
the findings or recommendations of NCW are of little or no evidentiary
value and do not amount to substantive evidence in judicial proceedings; iv)
it‟s investigations are to be exerted towards broad policy issues and
concerns, advising or recommending the appropriate government or agencies
of the best practices aimed at addressing a broad range of gender related
concerns; and, v) NCW cannot look into the material and examine witnesses
to decide whether the allegations made in a complaint are well founded or
not and cannot return factual findings drawn.
12. Supreme Court in Bhabani Prasad Jena Vs. Convenor Secretary,
Orissa State Commission for Women (2010) 8 SCC 633 was concerned 
with the power of State Commission for Women constituted under the Orissa
(State) Commission for Women Act, 1993. It was held that the said
Commission was broadly assigned the role of i) taking up studies on issues
of economic, educational and healthcare that may help in overall
development of women of the State; ii) to gather statistics concerning
offences against women; iii) probe into complaints relating to atrocities on
women, deprivation of women of their rights and upon ascertainment of facts
take up the matter with the concerned authorities for remedial measures; and,
iv) to help women in distress as a friend, philosopher and guide in
enforcement of their legal rights. However no power or authority has been
given to the State Commission to adjudicate or determine the rights of the
parties. It was further held that the power conferred on the State
Commission to receive complaints and to take up the matter with the
authorities concerned for appropriate remedial measures did not entrust 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. It was yet
further held that the conferment of the powers of a Civil Court on the State
Commission did not give jurisdiction to the State Commission to make an
order as made in that case, of payment of maintenance and direction for 
conduct of a DNA test and which was held to be beyond the competence of
the State Commission.
13. A Division Bench of the High Court of Bombay in KPMG India Pvt.
Ltd. Vs. National Commission for Women MANU/MH/1256/2014 has also
held that the NCW cannot arrive at a conclusion or grant relief though can
make recommendations on the basis of such facts in the larger interest of
women. It was held that NCW has no jurisdiction to determine whether or
not there was an unfair dismissal or demand a letter of apology or direct
payment of compensation or grant relief by way of ordering payment of
bonus. It was reiterated that NCW functions in a recommendatory capacity
and is not an adjudicatory body and the provisions of Section 10(4) of the
NCW Act investing NCW with powers of a Civil Court do not entitle it to
arrive at findings of fact or to arrive at final conclusions or grant reliefs that a
Civil or Criminal Court can.
14. I will be failing in my duty if do not mention another judgment of this
Court in Dr. Anil Seth Vs. Delhi Commission for Women
MANU/DE/2731/2010 which appears to take a different stand inspite of
noticing U.S. Verma, Principal and Delhi Public School Society supra but
without noticing the dicta of the Supreme Court in Bhabani Prasad Jena
supra However in the light of the otherwise consistent judgments supra, the
same cannot be said to be laying down good law.
15. However, as far as the claim of the petitioner for damages is
concerned, though the counsel for the petitioner has referred to, (i) Vikram
Sharma supra; (ii) Chairman, Railway Board Vs. Chandrima Das (2000) 2
SCC 465; and, (iii) M.S. Grewal Vs. Deep Chand Sood (2001) 8 SCC 151 in
this respect to contend that compensation can be awarded in writ jurisdiction
but considering that the present is essentially a matrimonial dispute, I do not
find it to be a fit case for award of damages / compensation in writ
jurisdiction. However, since the respondent No.1 NCW, notwithstanding the
earlier judgments has acted beyond its jurisdiction, I deem it appropriate to
award costs of this petition of Rs.30,000/- to the petitioner payable by the
respondent No.1 NCW within four weeks of today.
16. The petition is allowed to the aforesaid extent with liberty to the
petitioner to, in accordance with law, pursue the claim for damages /
compensation which has not been entertained for the reasons aforesaid.
 RAJIV SAHAI ENDLAW, J.
MARCH 31, 2016
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