WP(C)/21/2023 of JIWAN KUMAR BHUSAL Vs THE STATE OF SIKKIM AND ORS. on 6 December 2023

J U D G M E N T

Bhaskar Raj Pradhan, J.

1. The present writ petition filed on 02.06.2023 assails the Order dated 05.11.2020 passed by the Sikkim State Commission for Women (respondent no.2) on the ground that under the Sikkim State Commission for Women Act, 2001 it did not have the power to pass such an order.

2. The impugned order was passed on the following facts and circumstances. On 06.10.2020 the respondent no.3, the wife preferred a complaint before the respondent no.2. She alleged that she had been suffering because the petitioner, her husband, had been having an affair with his own relative i.e. sister-in-law for almost a year; when confronted the sister-in-law denied the facts and switched off her cell phone; she had proof regarding their affair and adultery; the petitioner used to mentally torture her and their children; the petitioner has not given her a single rupee from his salary; she was in grief not knowing what she was supposed to do and therefore, sought the guidance and help.

3. What happens thereafter,before the respondent no.2, is the pivotal issue which has led to the present writ petition being filed, although belated.

4. Admittedly, summons were issued to the petitioner and respondent no.3 by the respondent no.2. According to the respondent no.2 during investigation it was revealed that the petitioner was having an affair with the sister-in-law. Although it is not clear how the sister-in-law appeared before the respondent no.2, the respondent no.2 confirms she assured the respondent no.3 that she would not continue her relationship with the petitioner and sought apology from respondent no.3. When the respondent no.2, as asserted by it, was requested by the parties to record the confession of the sister-in-law, the Order dated 19.10.2020 was prepared by the respondent no.2. On 19.10.2020 the respondent no.2 heard the petitioner, the respondent no.3 as well as the sister-in-law and passed the following Order:-

“Heard both parties and their submissions. The other woman Ms. Jxx Sxx was also present. The husband has asked to get salary certificate on 23/10/2020. The other woman Ms. Jxx Sxx has submitted that she will not keep any kind of relation with her brother-in-law henceforth. She has sought apology from the wife of Jiwan Kr. Bhusal. Next date 23/10/2020.”

5. According to the respondent no.2 when the petitioner and the respondent no.3 appeared before it on 05.11.2020 both the parties were given full opportunity to place their grievance and after hearing them passed the impugned Order dated 05.11.2020 recording what was agreed by the petitioner before the respondent no.2 in the following manner:- “Government of Sikkim Sikkim State Commission for Women Gangtok In the matter of :

Smt. Sunita Bhusal R/O: Bardang, East Sikkim Complainant Respondent

ORDER

Memo No. 175/SSCW/2020-2021 Date: 05/11.2020

Heard both parties and their submissions. The husband has brought his salary certificate. As agreed by both, the husband will give Rs.20,000/- to his wife for the maintenance on monthly basis from December which will be directly deducted from the salary a/c as decided by the husband. Both parties will maintain cordial relationship.

6. According to the petitioner, he was cleverly coerced to pay Rs.20,000/- to respondent no.3 as maintenance on monthly basis and also made the sister-in-law to pay Rs.3 lakhs in cash and a ‘khada’ to the respondent no.3. The respondent no.3 disputes this assertion and submits that the story of coercion after a lapse of four years is a false allegation. The respondent no.3 also disputes that the petitioner was coerced to pay the amount of Rs.20,000/- as maintenance but admits that the petitioner himself had voluntarily given consent to pay Rs.20,000/- per month. The respondent no.3 also submits that respondent no.2 had only assisted respondent no.3 in getting immediate financial help in the need of the hour. However, there is no specific denial that an amount of Rs.3 lakhs was paid to the respondent no.3 by the sister-in-law in cash.

7. On 06.11.2020 the petitioner wrote a letter to the respondent no.2 agreeing to pay Rs.20,000/- from his salary account.

8. On 27.03.2023 the petitioner wrote to the respondent no.2 drawing its attention to the judgment of the Supreme Court inBhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women and Another[1]and requesting it to order to stop the deduction of Rs.20,000/- per month from his salary which he had paid for over two years. The petitioner thereafter approached the Sikkim Nationalised Transport Department to request it to stop the monthly deduction by its letter dated 27.03.2023. However, when these efforts failed he approached this Court by filing the present writ petition.

9. Heard Mr. Abhinav Kant Jha, learned counsel for the petitioner, Dr. Doma T. Bhutia, learned Senior Advocate for the respondent no.2 and Ms. Mon Maya Subba, learned counsel for the respondent no.3.

10. The learned counsel for the petitioner submits that the respondent no.2 had no authority to act in an adjudicatory manner as it had no power to adjudicate relying upon the judgment of the Supreme Court inBhabani Prasad(supra).

11. The learned Senior Advocate for the respondent no.2 submitted that the facts in Bhabani Prasad (supra) were substantially different. She reiterated the submission, as has been contested in the counter-affidavit filed by the respondent no.2, that it had not passed any direction but only recorded what was agreed by the petitioner on 05.11.2020. According to the respondent no.2, it is a statutory body constituted by the Government of Sikkim under the Sikkim State Commission for Women Act, 2001 which has all the powers of the Civil Court under section 11 thereof. It is submitted that the respondent no.2 has been authorised to receive complaints from aggrieved women under section 11 thereof. Accordingly the respondent no.2 received the complaint from the respondent no.3 and being a statutory body issued summons to the parties. When the parties appeared before the respondent no.2, the petitioner voluntarily agreed to pay the amount of Rs.20,000/- from his salary as monthly expenses towards his wife and children. It is also submitted that the writ petition has been filed after a lapse of four years without any explanation.

12. The impugned Order is dated 05.11.2020. Admittedly, the petitioner has approached this Court only on 02.06.2023 after a substantially long delay. According to the petitioner, the delay was caused as he was naive to the intricacies of law and he was not aware that the respondent no.2 was not empowered to pass the impugned order. The learned Senior Counsel pressed the judgment of the Supreme Court inS.S. Balu & Anr. vs. State of Kerala & Ors.[2]to submit that the discretionary jurisdiction of this Court may not be exercised in favour of those who approached the Court after a long time since delay and latches are relevant factors for exercise of equitable jurisdiction.

13. InBhabani Prasad Jena(supra)the Supreme Court considered and interpreted the provision of section 10 of the Orissa State Commission for Women Act, 1993. On perusal of section 10 of the Orissa State Commission for Women Act, 1993 it is noticed that it is in pari materia with section 11 of the Sikkim State Commission for Women Act, 2001. For better clarity, the two provisions are extracted below in a tabular form:- Comparison Chart on Section 11 of the Sikkim State Commission for Women Act, 2001 and Section 10 of the Orissa (State) Commission for Women Act, 1993

Government;

be referred to it by the State Government.

(2) The State Government shall cause all the (2) The State Government shall recommendations or reports, or any part cause all the recommendations thereof as may be presented to it by the or reports, or any part thereof, as Commission under sub- clause (ii) of clause (a) may be presented to it by the of sub-section (1) which relate to any matter Commission under Sub- section with which the State Government is concerned (1), which relate to any matter to be laid before the legislature of the State with which the State Government along with Memorandum explaining the action is concerned, to be laid before taken or Proposed to be taken on the the Legislature of the State along recommendations of the Commission and the with a memorandum, explaining reasons non acceptance, of such the action taken or proposed to recommendations. be taken on the recommendations of the Commission and the reasons for the non acceptance, if any, of such recommendations.

14.

The Supreme Court inBhabani Prasad Jena(supra)

has held:

“9. It would be seen from Section 10 of the 1993 Act that the State Commission has been authorised 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 to 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 authorities concerned for appropriate remedial measures. The State Commission is also given the role of assisting, training and orienting the non-governmental organisations in the State in legal counselling of poor women and enabling such women to get legal aid. Under clause (f) of Section 10(1), the State Commission is authorised 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 authorities concerned these matters for remedial action.

10. In other words, the State Commission is broadly assigned to take up studies on issues of economic, educational and health care 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 authorities concerned for remedial measures; 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.

11. Mr Ranjan Mukherjee, learned counsel for Respondent 2 submitted that once a power has been given to the State Commission to receive complaints including the matter concerning deprivation of women of their rights, it is implied that the State Commission is authorised 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.”

15. When the Supreme Court has on examination of section 10 of the Orissa State Commission for Women Act, 1993 already held as above, no other interpretation of the pari materia provision of section 11 of the Sikkim State Commission for Women Act, 2001 is possible. Accordingly it is held, on reading of the Sikkim State Commission for Women Act, 2001 and specifically section 11 thereof, that the respondent no.2 has been authorised to perform the functions enumerated in section 11 (1) (a) to (g) only. The respondent no.2 while it is authorised to receive complaints inter alia on atrocities on women and offences against women; deprivation of women of their rights relating to minimum wages, basic health and maternity rights; and investigate the matter it can thereafter, only take up the grievances raised in the complaint with the authorities concerned for appropriate remedial measures. The respondent no.2 does not have the power or authority to adjudicate or determine the rights of the parties. The Sikkim State Commission for Women Act, 2001 has not entrusted the respondent no.2 with the power to take up the role of a Court or an adjudicatory tribunal and determine the rights of the parties. The respondent no.2 is therefore, not a tribunal discharging the function of a judicial character or a Court.

16. Viewed on the above parameters, the act of respondent no.2 in the present case has been adjudicatory. Even if this Court was to believe that no coercion was exercised by the respondent no.2 to compel the petitioner to agree in paying maintenance to the respondent no.3 as recorded in the impugned Order dated 05.11.2020 admittedly, the respondent no.2 sought to take an adjudicatory role which was clearly impermissible. The Sikkim State Commission for Women Act, 2001 has not given jurisdiction to the respondent no.2 to pass the impugned order and adjudicate the issues between the petitioner and the respondent no.3 in the manner it did. The impugned order dated 05.11.2020 was outside the jurisdiction of the respondent no.2 as it had no competence to pass it and therefore, a void order.

17. This Court is therefore, of the view that although there is substantial delay on the part of the petitioner to approach this Court, it must be condoned. It is trite the discretionary jurisdiction may not be exercised in favour of those who approach the Court after a long time. It has also been repeatedly held by the Supreme Court that however, there is another facet and the Court is required to exercise “judicial discretion”. Delay and latches is not an absolute impediment and sometimes there are mitigating factors. It depends on facts of each case. When the act complained of shocks the judicial conscience, the Court should not hesitate to exercise the discretion more so when no third party interest is involved. There could be cases where the demand for justice is so compelling, that this Court would be inclined to interfere in spite of the delay. The judicial discretion must be exercised fairly and justly to promote justice and not defeat it. When the claim made by the petitioner is legally sustainable, delay should be condoned. Where circumstances justifying the conduct exists, the illegality which is manifest, cannot be sustained on the sole ground of latches. No one has a vested right in injustice being done or perpetuated.

18. The plea of the respondent no.3 is substantially on the wrong doings alleged against the petitioner. The complaint of the respondent no.3 relates to matrimonial dispute between the respondent no.3 and the petitioner which is required to be inquired into by a competent Court. This Court is not inclined to examine the merits thereof. Although this Court is of the view that the impugned Order dated 05.11.2020 cannot stand and accordingly sets it aside, it is clarified that it shall not preclude the respondent no.3 from claiming maintenance or any other order of financial support or otherwise against the petitioner in appropriate proceedings from the Court of competent jurisdiction. The petitioner, needless to say, shall be at liberty to contest the claim of the respondent no.3 on all available grounds.

19. The writ petition is accordingly allowed and disposed of along with the pending application.

( Bhaskar Raj Pradhan ) Judge