The National Commission for Schedule Caste cannot delegate its power to conduct an enquiry under Article 338(5) of the Constitution to the Registrar of a Debts Recovery Tribunal.

PATHERYA, J.

1. BY this writ petition the petitioner seeks to challenge the complaint dated 22nd December, 2004, the investigation report, letters directing further action against the petitioner and to quash the said documents.

2. The case of the petitioner is that a complaint was lodged by one Shib Shankar Naskar on 22nd December, 2004 wherein it was alleged that casteist remarks had been made by the petitioner while posted on deputation as Assistant Registrar in the Debts Recovery Tribunal-I Kolkata. Such complaint was made to the National Commission for Schedule Caste who on receipt of the said complaint, directed the Registrar Kolkata Debts Recovery Tribunal to make an enquiry and submit a report within the time specified in the letter dated 4th February, 2005. The Registrar, acting as the Investigating Officer undertook investigation by calling for statements from various witnesses. One of the witnesses who submitted a statement was the Register himself. A statement was also sought from the petitioner and the same was given. Thereafter report was prepared on 23rd March, 2005 and the same was forwarded to the National Commission. Although the Investigation Report is dated 23rd March, 2005 no copy of the report was given to the petitioner till 10th September, 2005. The Registrar functioned in two capacities-one as an Investigating Officer and the other as the Registrar. This will be evident from not only the report dated 23rd March, 2005 but also statements dated 7th February, 2005. The report prepared by the Investigating Officer was forwarded to the Presiding Officer DRT-I Kolkata instead of to the National Commission who had in fact sought an investigation to be made by the Investigating Officer. The Presiding Officer on receipt of the report forwarded the same to the National Commission Kolkata Chapter, which in turn sent it to the National Commission. Initially the petitioner was on deputation for three years that is from 10th April, 2002 to 9th April, 2005 but an extension was granted on 10th April, 2005 to 9th April, 2006. Repatriation was sought to be made on 18th October, 2005 which was served on the petitioner on 17th March, 2006.

Article 338(5)(b) empowers the Commission to make an enquiry into a complaint made and such power cannot be delegated. It is only on the basis of the investigation made by the National Commission that it has to decide whether the person against whom complaint has been made can be punished under Section 3(1) (x) of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (1989 Act). Section 4 deals with punishment for neglect to perform duties. The report was considered at the meeting held on 20th September, 2005. In the affidavit filed by the Respondent nos. 6,7 and 8 it has been specifically stated that as per Article 338 of the Constitution of India the Commission was to investigate into the matter. Therefore, it was incumbent on the Presiding Officer to carry out such investigation and not delegate its power to the Registrar to conduct the enquiry. The writ petitioner is a Group-A Officer and belongs to the Intelligence Bureau and without the permission of the Secretary Intelligence no investigation against him could have been initiated. In not taking such permission Rule 38 of the Transaction of Business Rules of the Central Government have not been followed. Enquiry by the Registrar is bad as it was initiated on 3rd February, 2005 on the basis of a telephonic message and much before 21st February, 2005. This will be evident from the letters addressed by the Investigating Officer on 3rd February, 2005 calling for statements from some of the staff members. It will be also evident from the statement of the Registrar himself dated 7th February, 2005. Therefore, prior to receipt of the representation and direction to carry out the investigation the process of investigation was initiated on the direction of the National Commission over telephone. As per the Cen