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Judgment
K.K. Trivedi, J—This writ petition initially was filed seeking to challenge the orders dated 21.10.2013 and 20.11.2013 (Annexure P-21 & P-22), said to be passed by respondent No. 2, the Commissioner, Woman Empowerment Department, Bhopal. By the said order the respondent No. 3, the Collector, Betul, was directed to take immediate action for cancellation of registration of the Society of the petitioner and send proposal with recommendations of District Advisory Board to take action against the President of the Society under the provisions of Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (herein after referred to as ''Act of 2000''). During pendency of the writ petition since certain more actions were taken, separate orders were passed, by seeking amendment in the writ petition the petitioner has also called in question the orders dated 04.03.2014 and 10.12.2014.
Briefly the case of the petitioner is that the founder of the petitioner Society by name Smt. Nirmala Yadav, was a landless and helpless lady, victimized by her husband and as she was having two children, one daughter and one son, she established the petitioner Education and Social Welfare Society. The petitioner Society was involved in social welfare activities, in consideration of which the petitioner Society was allotted work of conducting Ashray Grih for the ladies, who are helpless and victimized, under the provisions of the Protection of Women from Domestic Violence Act, 2005 and the rules made thereunder. By subsequent order, in terms of the provisions of Act of 2000 and the rules made thereunder, the petitioner Society was also granted permission to run a ''Bal Grih'' on 20.09.2012.
The petitioner extended such facilities to the deserving and the State Government started grant to the petitioner. However, for the best reason known to the authorities concerned, grant was not released and this fact was pointed out by the petitioner to the concerned authorities. It appears that some rival group was interested to get the grant in place of petitioner and on making of complaint, action was initiated against the petitioner. The Commissioner of the concerned Directorate issued a letter to the Superintendent of Police, Betul for initiating enquiry in respect of the complaint received against the petitioner. One such enquiry was conducted. The report was submitted that no irregularities were found in the Society of the petitioner. Despite receipt of the information in that respect, only because of the prejudice, the order impugned was issued against the petitioner on 21.10.2013 with a direction to shift the children from the petitioner''s home to the other Committee.
The writ petition was pending when actions were initiated by the respondents and though there was an interim protection granted by this Court in terms of order dated 26.12.2013, yet on the basis of certain complaints, further impugned orders were issued. All these actions indicate that the petitioner has been denied appropriate opportunity of hearing and punitive orders are issued against the petitioner. It is, thus, contended that the orders impugned are bad in law and are liable to be quashed. Following reliefs are claimed in the writ petition :
"(I) That, this Hon''ble Court may be pleased to issue a writ in the nature of certiorari and quash the impugned orders dated 21.10.2013 (Ann.P-21) and 20.11.2013 (Ann.P/22) issued by respondent no. 2.
(II) That, any other relief which this Hon''ble Court deem fit and proper may also be awarded to the petitioner in the nature of public interest.
(III) The Hon''ble Court may be pleased to issue a writ order or direction in the nature of certiorari thereby quashing the order dated 04/03/14 issued by respondent no. 2 (Annexure-P/24).
(IV) The Hon''ble Court may be pleased to issue the writ, order or direction in the nature of certiorari thereby quashing order Annexure-P/28 issued by respondent no. 2."
Upon service of notice of the writ petition, the respondents have filed their return. The official respondents in their return have contended that the petitioner has challenged only interim directions for conducting the enquiry and as the enquiry has already been completed and final order is passed, which order is not challenged in the writ petition, the writ petition has rendered infructuous. The order dated 04.03.2014 can be challenged in substantive writ petition. When the amendment was incorporated in the writ petition, yet another return was filed by the respondents by way of a reply to the amendment application and various facts have been stated therein. It is stated that on due enquiry, fact was found that President of the petitioner was not keeping the children in good manner inasmuch as the children were manhandled, badly treated, were not provided the amenities and, thus, it was found that the petitioner was not to be allowed to look-after the children any longer. The news have appeared in the newspaper that some of the children have run away from the center of the petitioner and, therefore, ultimately final order was passed.
The respondent No. 7 has also filed the return contending inter alia that when inspection of the child home of the petitioner was done by the said respondent, the children have stated that they were provided all the facilities and were looked-after properly. It is also contended in the said return that the reports were sent by the Deputy Superintendent of Police of AJAK Police Station stating the fact that false allegations were made against the petitioner. From this it is contended that the orders against the respondent No. 5 are required to be passed.
Heard learned Counsel for the parties at length and perused the record.
True it is that the petitioner Society is established and it has been granted recommendation for the purposes of running of protection home under the provisions of the Protection of Women from Domestic Violence Act, 2005. It is further true that under the Act of 2000, the petitioner is recognized again to establish a Bal Grih. The provisions relating to rehabilitation and social reintegration of the children under the Act of 2000 are prescribed in Chapter-IV. The process of rehabilitation and social reintegration depends on certain activities alternatively which has to be done in the fresh manner like adoption, foster care, sponsorship and sending the children to an aftercare organization. The provisions in this respect are contained in Sections 40 to 44 of the Act of 2000.
The Rules have been made for the purposes of achieving the aforesaid object of the Act, which are known as the Juvenile Justice (Care and Protection of Children) Rules, 2007 (herein after referred to as ''Rules of 2007''). Chapter-V of the Rules deals with the aforesaid rehabilitation and social reintegration. However, more important aspect is setting up a Committee and all the functions and discharge of duties of the said Committee. Rule 19 of the Rules of 2007 prescribes constitution of a Child Welfare Committee in every district. Rule 20 of the Rules of 2007 prescribes the composition of the Child Welfare Committee. Rule 24 prescribes sitting and convening meetings of the Committee, which is to be held in the children''s home or at a place in proximity to the children''s home or at a suitable premise in any institution run under the Act.
These provisions are made in consonance to the provisions of Chapter-III of the Act of 2000. Rule 25 of the Rules of 2007 elaborately prescribes the functions and powers of the Committee, which reads thus :
"25. Functions and Powers of the Committee.--The Committee shall perform the following functions to achieve the objectives of the Act, namely:-
(a) take cognizance of and receive children produced before the Committee;
(b) decide on the matters brought before the Committee;
(c) reach out to such children in need of care and protection who are not in a position to be produced before the Committee, being in difficult circumstances, with support from the District Child Protection Unit or State Child Protection Unit or the State Government;
(d) conduct necessary inquiry on all issues relating to and affecting the safety and well being of the child;
(e) direct the Child Welfare Officers or Probation Officers or non-governmental organisations to conduct social inquiry and submit a report to the Committee;
(f) ensure necessary care and protection, including immediate shelter;
(g) ensure appropriate rehabilitation and restoration, including passing necessary directions to parents or guardians or fit persons or fit institutions in this regard, in addition to follow-up and coordination with District Child Protection Unit or State Adoption Resource Agency and other agencies;
(h) direct the Officer-in-charge of children''s homes to receive children requiring shelter and care;
(I) document and maintain detailed case record along with a case summary of every case dealt by the Committee;
(j) provide a child-friendly environment for children;
(k) recommend ''fit institutions'' to the State Government for the care and protection of children;
(l) declare ''fit persons'';
(m) declare a child legally free for adoption;
(n) keep information about and take necessary follow-up action in respect of missing children in their jurisdiction;
(o) maintain liaison with the Board in respect of cases needing care and protection;
(p) visit each institution where children are sent for care and protection or adoption at least once in three months to review the condition of children in institutions, with support of the State Government and suggest necessary action;
(q) monitor associations and agencies within their jurisdiction that deal with children in order to check on the exploitation and abuse of children;
(r) co-ordinate with the Police, Labour Department and other agencies involved in the care and protection of children with the support of District Child Protection Unit or State Child Protection Unit or State Government;
(s) liaison and network with the corporate sector and non-governmental organisations for any of the above, including for social inquiry, restoration and rehabilitation, as and when required; and
(t) maintain a suggestion box to encourage inputs from children and adults alike and take necessary action."
The establishment of the children''s home is prescribed under Section 34 of the Act of 2000 and for the said purpose the provisions are made in Rule 29 of the Rules of 2007, which are relevant for the purposes of present writ petition, therefore, the same are reproduced hereunder :
"29. Children''s Homes.--(1) The State Government itself or in association with voluntary organizations, shall set up separate homes for children in need of care and protection, in the manner specified below-
(a) all children''s homes shall be registered as child care institutions under sub-section (3) of section 34 of the Act and rule 71 of these rules;
(b) all children''s homes shall be certified as per the procedure laid down in rule 70;
(c) all children''s homes shall report to the concerned Committee about every child in need of care and protection received by them;
(d) children of both sexes below ten years may be kept in the same home but separate facilities shall be maintained for boys and girls in the age group 5 to 10 years;
(e) every children''s home shall include separate facilities for children in the age group of 0-5 years with appropriate facilities for the infants;
(f) separate children''s homes shall be set up for boys and girls in the age group 10 to 18 years;
(g) children in the age group of 10 to 18 shall be further segregated into two groups of 10 to 15 years and 15 to 18 years.
(2) Each children home shall be a comprehensive child care center with the primary objective to promote an integrated approach to child care by involving the community and local Non-Governmental Organisations through the Management Committee set up under rule 55 of these rules and the District Child Protection Unit or State Child Protection Unit or the State Government shall make an annual performance review of functioning of the children''s homes.
(3) The activities of such centre shall focus on:
(a) preparing and following individual care plans for every child, with rights based approach, specifically addressing the child''s physical and mental health, emotional needs, education, skill development, protection and special needs if any;
(b) family based non-institutional services, such as, foster family care, adoption and sponsorship;
(c) specialized services in situations of conflict or disaster and for juvenile or children affected by terminal or incurable disease to prevent neglect by providing family counselling, nutrition, health interventions, psycho-social interventions and sponsorship;
(d) emergency outreach service through child line (Toll free Help Line No. 1098);
(e) linkages with Integrated Child Development Services to cater to the needs of children below six years;
(f) linkages with organizations and individuals who can provide support services to children; and
(g) opportunities to volunteers willing to provide various services for children."
There is a nexus in between the children''s home and the shelter home, therefore, Rule 30 of the Rules of 2007 will also be necessary to be examined, which reads thus :
"30. Shelter Homes.-- (1) For children in urgent need of care and protection, such as street children and run-away children, the State Government shall support creation of requisite number of shelter homes or drop-in-centres through the voluntary organizations.
(2) Shelter homes shall include:
(g) short-stay homes for children needing temporary shelter, care and protection for a maximum period of one year,
(h) transitional homes providing immediate care and protection to a child for a maximum period of four months,
(I) 24 hour drop-in-centres for children needing day care or night shelter facility.
(3) The shelter homes or drop-in-centres shall have the minimum facilities of boarding and lodging, besides the provision for fulfillment of basic needs in terms of clothing, food, health care and nutrition, safe drinking water and sanitation.
(4) There shall be separate shelter homes for girls and boys as per rule 40(2)(d) of these rules.
(5) All shelter homes shall provide requisite facilities for education, vocational training, counselling and recreation or make arrangements for it in collaboration with voluntary organizations or corporate sector.
(6) The Committee, Special Juvenile Police Units, public servants, Childlines, voluntary organizations, social workers and the children themselves may refer a child to such shelter homes.
(7) All shelter homes shall submit a report of children using the shelter home facility along with a photograph of the child to the Committee, the missing persons bureau or special juvenile police unit and the District Child Protection Unit or the State Child Protection Unit.
(8) The requirements of producing a child received by a shelter home before the Committee, inquiry and disposal under sections 32, 33, 38 and 39 of the Act shall apply only to shelter homes other than drop-in-centres as specified in rule 30(2)(c) of these rules.
(9) The services of Officer-in-charge, child welfare officer, social worker shall be provided for the proper care, protection, development, rehabilitation and reintegration needs of children in shelter homes.
(10) No child shall ordinarily stay in a short stay home for more than a year except in special circumstances with the approval of the Committee."
Rule 34 of the Rules of 2007 deals with foster care and Rule 35 deals with a criteria for selection of families for foster care. From the perusal of these provisions it is clear that mechanism is to be made in such manner so as to ensure that a child is given full facility of development, required love, affection and care. The Rule further prescribes the provisions of certification or recommendation and transfer of mechanism of the institution or aftercare organization. Rule 71 deals with registration under the Act and Rule 72 deals with grant-in-aid to the certified or recognized organization. A joint reading of all these provisions will make it clear that after due care a genuine institution is to be selected, registered and to be authorized to take charge of the foster care or look-after of the children required to be kept in the shelter home or children''s home, as the case may be.
From the analysis of the provisions of the Act and the Rules herein above, it is clear that in no case benefit is to be taken by any Society or non-government organization to run any foster home, children''s home or care centers and in fact religiously such services are to be extended to the needy children. However, it appears that instead of charity, establishment of the children''s home or shelter home or foster care center has become a business or a source of income by receiving grant from the State public exchequer and this has resulted in rivalry between the two or more NGOs functioning in the same area. Apparently this is the result of the present litigation before this Court. To some extent the petitioner was right in saying that when complaint was made against the action of the petitioner, reports were called from the police authorities and such reports were sent. However, this Court failed to understand as to how the Superintendent of Police has placed full reliance on the report submitted by some of the Committees without even recording the statements of those, who were living in the children''s home of the petitioner. The statements placed on record and relied by the petitioner do not indicate that such statements were recorded by the Superintendent of Police himself or by some authorized person. Even when the Commissioner of the Directorate had asked the Superintendent of Police to submit a report in that respect vide memo dated 28.02.2013, instead the report was forwarded simply and nothing was inquired by the Superintendent of Police or even by a gazetted officer working under him. Had it been a case that proper inquiry is done by the police authorities at that time with the assistance of the Committee so constituted under the Act, the real facts would have come on record.
It is further surprising as to how a Deputy Secretary of the Government of Madhya Pradesh in Woman and Child Development Department without the authority to issue a memo to the Commissioner of the Directorate has done so, stating that the complaint made against the petitioner was found to be incorrect or false. This order was not issued even after an enquiry and simply in the said memo the report of the Deputy Superintendent of Police, AJAK was endorsed. It was not that the proper enquiry was conducted by the said Secretary himself. It is also surprising as to how and why the Deputy Superintendent of Police of AJAK has sent a memo to the Station House Officer of Police Station, Betul. What was the occasion of sending such a memo is also not clear. Therefore, such letters were of no consequence.
The right procedure to conduct enquiry in respect of complaint received against the petitioner was to ask the district authorities to get the inspection of petitioner''s center done through the Child Welfare Committee. The facts were to be verified whether the Child Welfare Committee has made the periodical inspection of the center of petitioner or not. It was also to be verified whether District Woman Empowerment Department or the Child Welfare Officer has visited the center of the petitioner or not. From the residents of neighbourhood of center of the petitioner query should have been done and if necessary, the statements of inmates of the center of petitioner should have been recorded. However, no inquiry in this manner was conducted but on some report of Deputy Superintendent of Police, AJAK, the communication was made. This cannot be said to be the right procedure of conducting enquiry in such matters, specially when the welfare of such small children was at stake.
As has been pointed out herein above, in reference to amendment made in the writ petition, a reply has been filed by the official respondents along with which certain documents have been placed on record. The official respondents have relied on the newspaper cutting, which fact itself is enough to demonstrate that at the relevant time the enquiry was not conducted by the concerned authority, even when the news item was published in the newspaper. Of course thereafter certain statements of children were recorded and have been placed on record along with the aforesaid reply where allegations were made by the children that they were ill-treated in the children''s home of the petitioner, were not provided the food, the statements of such witnesses though recorded after passing of order dated 10.02.2014 are really shocking. Such statements have been recorded by one Naib Tahsildar in presence of some persons and, therefore, cannot be ignored. Keeping in view these statements, it has to be held that there was some reason to pass the impugned order against the petitioner, though such reasons were not properly inquired at the relevant time.
Now again reverting back to the provisions of law in respect of child welfare, it is seen that it is the bounden duty of the State authorities to ensure that the Committee so constituted for the protection of children, works properly. Such Committees are not to be made for name shake to oblige the choiced persons by nominating them as office bearers of the Committee. The Committees have the statutory duty to discharge. Had the Committee at Betul District would have discharged the duties properly, the incident like one as has been occurred in the present case would not have occurred. Such a situation is not only alarming but shocking as well. Therefore, appropriate directions are required to be issued in this respect. This Court is conscious about the fact that present is only an adversary litigation against a particular order brought by the petitioner before the Court but this Court cannot ignore the fact that it has been conferred with the power to probe into such facts and to ensure that the real things are done in appropriate manner to upheld the law and welfare of citizen. In fact this is the constitutional responsibility cast on this Court.
In view of this, it would be appropriate to issue the directions to the authorities to look into these affairs, conduct the enquiry in appropriate manner and take action against the defaulting authorities including the Committees constituted under the Act. The Commissioner, Directorate of Mahila Sashaktikaran, Madhya Pradesh is in fact responsible to see that the Committee should discharge their duties properly and such authority is called upon to inquire into the activities of the said committees immediately and to direct them to discharge their statutory duties. The concerned authority of the district are directed to hold an enquiry in respect of the allegations levelled in the order impugned against the petitioner in terms of the provisions of the Act and the Rules and to submit a report before this Court within six weeks. The Collector, Betul and the Superintendent of Police, Betul, both will keep a watch on such enquiry and will supervise the same. If it is found that there were lapses on the part of the Committee constituted at Betul, namely Bal Kalyan Samiti, Betul or it is found that the officers of the Women Empowerment and District Children Protection Officer, Betul or District Women Empowerment Officer, Betul have not discharged their duties properly, the competent authority would take action against them in accordance to law.
Copy of this order be sent to the Principal Secretary of Department of Women Empowerment to circulate these instructions to all concerned district Committees and the District Officers to ensure compliance of the provisions of the rules indicated herein above and to submit periodical reports to the superior authorities of the State.
As far as the relief to the petitioner is concerned, since the orders have already been passed against the petitioner, the children from the children''s home of the petitioner have already been shifted, no relief at this stage can be granted to the petitioner. However, the petitioner would also be entitled to grant of opportunity of hearing in the matter of enquiry to be conducted, as directed herein above, and revival of the registration of the children''s home of the petitioner would depend upon the outcome of the aforesaid enquiry.
The writ petition is to be treated as disposed of finally but it is required to be re-listed after six weeks in the week commencing 5th October, 2015 for reporting compliance of these directions, under the Head ''Direction''.