Kerala High Court
Kerala State Electricity Board Ltd vs M.K.Venugopalan on 9 September, 2020
Bench: A.M.Shaffique, P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 09TH DAY OF SEPTEMBER 2020 / 18TH BHADRA, 1942
WA.No.2473 OF 2016
AGAINST THE JUDGMENT IN WPC 14627/2009 DATED 29-08-2016 OF HIGH
COURT OF KERALA
APPELLANTS/RESPONDENTS 1 TO 3:
1 KERALA STATE ELECTRICITY BOARD LTD
VAIDYUTHI BHAVAN, PATTAM, THIRUVANANTHAPURAM-695
004, REPRESENTED BY ITS SECRETARY.
2 THE CHAIRMAN
KERALA STATE ELECTRICITY BOARD LTD, VAIDYUTHI
BHAVAN, PATTAM, THIRUVANANTHAPURAM-695 004.
3 THE ACCOUNTS OFFICER (PENSION SANCTION)
KERALA STATE ELECTRICITY BOARD LTD, VAIDYUTHI
BHAVAN, PATTAM, THIRUVANANTHAPURAM-695 004.
BY ADV. SMT.ANEETHA A.G., SC, KERALA STATE
ELECTRICITY BOARD LIMITED
RESPONDENT/PETITIONER & RESPONDENT 4:
1 M.K.VENUGOPALAN
DEPUTY CHIEF ENGINEER (RETD), ELECTRICAL CIRCLE,
PALAKKAD, R/AT 15/494(1), SWATHY, KUNNATHOORMEDU,
PALAKKAD-678001.
2 STATE OF KERALA
REP.BY THE SECRETARY TO GOVERNMENT, SC/ST
DEVELOPMENT DEPARTMENT, GOVT.SECRETARIAT,
THIRUVANANTHAPURAM, PIN -695 001.
R1 BY ADV. SRI.P.C.SASIDHARAN
SRI.T.RAJASEKHARAN NAIR, SR. GOVT.PLEADER
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07-08-2020,
THE COURT ON 09-09-2020 DELIVERED THE FOLLOWING:
WA No.2473/2016
-:2:-
JUDGMENT
Dated this the 9th day of September, 2020 Shaffique, J.
This writ appeal is filed against the judgment in WP(C) No. 14627/2009 dated 29/08/2016 wherein the learned Single Judge quashed Ext.P8 order of the Chairman, Kerala State Electricity Board (hereinafter referred to as the 'Board') confirming the punishment of declining all the terminal benefits such as DCRG, Commutation and Pension of the petitioner and directed the respondents to sanction and disburse the retirement benefits to the petitioner. The appellants herein are the respondents in the writ petition and the petitioner is the first respondent.
2. The first respondent herein joined the service of the Board as Assistant Engineer (Electrical) by Ext.P1 order dated 28/04/1980 on the advice of Kerala Public Service Commission ('PSC' for short). The appointment WA No.2473/2016 -:3:- was from the supplementary list of Scheduled Caste Candidates of PSC on production of Ext.P2 Community Certificate dated 08/05/1973 issued by Deputy Tahsildar, Palakkad, in which it was certified that he belonged to "Gavara" community which is a Scheduled Caste in Malabar. The State Government conducted a Genealogical Study through Kerala Institute for Research, Training and Development Studies of Scheduled Castes and Scheduled Tribes ("KIRTADS" for short) on the receipt of a complaint that he does not belong to scheduled caste community and he had obtained appointment by misrepresenting his caste status. KIRTADS had filed report dated 26/07/1994 stating that the 1 s t respondent belongs to "Baliga Gavara" (Naidu Community), which is not a Scheduled Caste and his Scheduled Caste claim as "Gavara" is false. A show cause notice dated 07/09/1994 was issued to him and considering his objection dated 20/12/1994 and after hearing him, Ext.P5 Government Order dated 30/03/1995 was issued declaring that the 1 s t respondent and his family members did not belong to WA No.2473/2016 -:4:- Scheduled Caste. The entry regarding the caste which was entered as Scheduled Caste- Gavara in Service Book was cancelled by Chief Personal Officer of the Board based on this order on 04/03/1999.
3. The Vigilance wing of the Board had conducted an enquiry and they recommended registering vigilance case and conducting investigation for the grave misconduct of concealing the facts at the time of appointment and in the course of service in the Board. Disciplinary actions were initiated against the 1 st respondent while he was working as Deputy Chief Engineer (Transmission), Electrical Circle, Palakkad. The PSC had clarified on 17/09/2007 that he was appointed as Assistant Engineer against the reserved turn of Scheduled Caste Community. The 1 s t respondent was issued with Ext.P3 Memo of Charges with statement of allegations on 27/03/2008 for imposing major penalty and the 1 s t respondent filed reply dated 18/08/2008. The respondent retired from service on 31/10/2008. Ext.P6 show cause notice was issued by the Board on WA No.2473/2016 -:5:- 27/02/2009 to the 1 s t respondent proposing to decline all his terminal benefits such as DCRG, commutation and except his contribution to GPF as per KSR Part III Rule (3) 2 (a) and (c) and Ext.P7 is the explanation to the notice by the 1 s t respondent. The punishment was imposed by Ext.P8 order issued by Chairman of the Board dated 17/04/2009 by confirming Ext.P6 proposal.
4. The writ petition was filed challenging Ext.P8 order and also contending that the copy of KIRTADS enquiry report and Ext.P5 Government Order were not served on the 1 s t respondent. The main contention was that while finalising the disciplinary proceedings, Board cannot impose a punishment of withholding the pension and other retirement benefits by invoking Rule 2 of Part III KSR. The appellants claimed that t he 1 s t respondent, being an officer of the Board, had participated in the enquiry conducted by KIRTADS and he was served with a copy through the Secretary of the Board which is evident from the last page of Ext.P5 order.
5. The learned Single Judge set aside Ext.P8 order WA No.2473/2016 -:6:- on the premise that appellants did not provide copy of Ext.P5 to the 1 s t respondent and that there is delay in initiating disciplinary proceedings against him.
6. We have heard the learned counsel appearing for the appellant Smt.Aneetha A.G., Sri.P.C.Sasidharan, learned counsel appearing for the 1st respondent and Sri.T.Rajasekharan Nair, learned Senior Government Pleader appearing on behalf of the State.
7. The short question that has arisen in the appeal is whether the pension and other benefits due to a retired employee of KSEB can be withheld when it is found that he had obtained employment based on a false community certificate under community quota. There is no dispute about the fact that the 1 st respondent/petitioner got employment in the Kerala State Electricity Board as advised by Kerala Public Service Commission under the quota fixed for Scheduled Castes. There is also no dispute about the fact that while he was continuing in service, the Government received a complaint that he is not a member of Scheduled Caste. The Government called for a genealogical report from the Director, KIRTADS regarding the real caste status WA No.2473/2016 -:7:- of the delinquent officer. KIRTADS submitted a report on 26/7/1994 holding that the delinquent officer belongs to Baliga Gavara (Naidu) community and that his Scheduled Caste claim (Gavara) is false. Pursuant to the said report, Government issued show cause notice dated 7/9/1994 and he was asked to show cause why action should not be taken against him, withdrawing the benefits of Scheduled Caste. The officer submitted letter dated 20/12/1994 reiterating the fact that he was a member of Gavara Community. After having considered his explanation, Government observed that the report of KIRTADS conclusively proves that the officer has made a false claim as Gavara (SC) whereas he and his family members belong to Baliga Naidu caste. It was observed that he remained in his original caste status and identity for 20 years and since 1973, he made a false claim as Gavara (SC) capitalizing on similarity of caste name viz. Gavara Naidu with that of Gavara a S.C. of Kerala. It is further observed that in order to avoid local enquiry that might be ordered by the Tahsildar, the caste certificate was obtained from Deputy Tahsildar and nativity certificate alone was taken from the Tahsildar. Usually it is the Tahsildar who used to issue both these WA No.2473/2016 -:8:- certificates in a single form and it is based on the said bogus certificate that he got admission for Engineering course and later secured the employment in KSEB. In the light of the aforesaid findings, it was ordered as under:-
"(i) Government declare that Sri.M.K.Venugopalan, 15/675, Kunnathumedu, Palakkad-13 now Asst.Ex.Engr., KSEB, Alathur and members of his family do not belong to Gavara (SC) community but belong to Balija Gavarai community, members of which are popularly known as Naidus.
(ii) None of the members of this family shall be entitled to any of the benefits of Scheduled Castes. If any of the members of this family and availed of any benefits, exclusively meant for members of Scheduled Castes, all such benefits shall be stopped and all the financial benefits availed of shall be recovered.
(iii) If the appointment of Sri.M.K.Venugopalan in the KSEB is on consideration as a member of Scheduled Caste community, action shall be taken against him and a member of genuine scheduled castes should be given appointment.
(iv) If the caste entry in the SSLC Book of any of the members of this family is Gavarai (SC), it shall be got corrected as Naidu.
(v) Scheduled Caste certificates shall not be issued to any of the members of this family hereafter. All the Scheduled Caste certificates issued to the members of this family shall be treated as cancelled."
8. From the materials placed on record, it is seen that WA No.2473/2016 -:9:- proceedings were initiated against the delinquent officer only by issuance of memo of charges dated 27/3/2008. Petitioner acknowledged the receipt of the same on 15/4/2008. He requested for time for submitting reply and reply was submitted on 18/8/2008 in which he denied all the charges. The officer retired from service on 31/10/2008. Finding that his explanation was not satisfactory and in continuation of the same disciplinary action, notice dated 27/2/2009 was issued to the Officer. In the said notice it was proposed to decline all terminal benefits such as DCRG, Commutation and pension except his contribution to GPF as per KSR Part III Rule (3)2(a) & (c). He was asked to show cause why action should not be taken against him. The officer submitted a reply (Ext.P7) on 19/3/2009 and by order dated 17/4/2009, it was decided to decline all terminal benefits such as DCRG, Commutation and pension except his contribution to GPF.
9. The learned Single Judge found that if a person had obtained employment with the false caste certificate, the very appointment becomes invalid and relying upon the judgment in Viswanatha Pillai v. State of Kerala (2004 (1) KLT 708 (SC), held that the delinquent will not be entitled to enjoy the fruits of WA No.2473/2016 -:10:- the fraud and the employer has every right to deny retirement benefits. But still further, learned Single Judge proceeded to arrive at a conclusion that when Ext.P5 order of the Government has not been served on the delinquent or there is no proof that the said order had been served, Ext.P8 impugned order is bad in law.
10. But it is relevant to note that even in the memo of charges dated 27/3/2008, Board had initiated action against him pursuant to Ext.P5 Government Order dated 30/3/1995. In his reply given to Ext.P3 memo of charges dated 27/3/2008, he has stated that he had requested for a copy of the Government order dated 30/3/1995 and in the writ petition, it is stated that "thereafter, the petitioner was issued with a copy of Government Order dated 30/3/1995 by the Board in which it is stated that KIRTADS had opined that the petitioner belongs to Baliga Gavara community". Therefore, it is rather clear that he was in receipt of the report of the Government by which the Government had called upon the Board to take appropriate action. Of course the Board did not take immediate action but during the fag end of his career, Board has issued memo of charges dated 27/3/2008. WA No.2473/2016 -:11:-
11. There is no dispute about the fact that in terms of Proviso (a) to Rule 3 of Part III KSR, any departmental proceeding instituted while the employee was in service, whether before his retirement or during his re-employment, shall after the final retirement of the employee, be deemed to be a proceeding under the Rule and shall be continued and concluded by the authority by which it was commenced. Ext.P6 dated 27/2/2009 apparently is a continuation of the memo of charges issued on 27/3/2008 wherein it is stated that after issuance of memo of charges dated 27/3/2008, a statement of defence was submitted by the delinquent on 18/8/2008 and after examining the report with connected records, it was found that he had secured employment under special recruitment quota whereas he was not entitled to be a person to be appointed under the Scheduled Caste quota. Hence, it was proposed to decline all terminal benefits. Ext.P6 is considered as a continuation of Ext.P3 memo of charges and in the light of KIRTADS's report, there was nothing further to be enquired into. In fact, there is a finality to the report of KIRTADS unless it is challenged in accordance with law. The delinquent officer did not opt to challenge the Government Order WA No.2473/2016 -:12:- dated 30/3/1995 or the KIRTADS report, though according to him, he had received the same during enquiry.
12. One contention urged by the learned counsel for the delinquent officer is that a proper enquiry was not conducted before terminating his service. As per the Kerala State Electricity Board Employees (Classification, Control and Appeal) Regulations, 1969, major penalties can be imposed only after conducting an enquiry in terms of Rule 16 of the Regulations. As per Rule 16(1), the penalty like reversion, replacement of the service of a Board employee, compulsory retirement or termination of service can be passed only after an enquiry into the matter. The procedure to be adopted by the enquiring authority is provided under sub-rule (7) of Rule 16.
13. But, this is not a case in which an employee is proceeded against for an alleged misconduct while he is in employment. In the case on hand, there is a clear finding by the Government and KIRTADS as well as the Board that the delinquent officer has obtained employment by producing a false community certificate. He was not eligible to get the appointment under the category of Scheduled Caste and the genealogical WA No.2473/2016 -:13:- report of KIRTADS arrived at a finding that he does not belong to Scheduled Caste community. Therefore, as rightly observed by the learned Single Judge, a fraud has been committed on the Government and Board and when fraud is established, the very appointment becomes void under law. It is true that the delinquent officer had while remaining in service completed his tenure and has reached the age of superannuation. What remains is the pensionary benefits.
14. Section 16 of the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 (referred to as Act 11 of 1996 for short) is a special provision which deals with removal of service of an officer who was employed in Government service. Section 16(1) reads as under:
"16. Benefits secured on the basis of false community certificates to be withdrawn. - (1) Whoever not being a person belonging to any of the Scheduled Caste or the .Scheduled Tribes secures admission in any educational institution against a seat reserved for such Castes or Tribes or secures any appointment in the Government, Government Undertakings, Local Authority or in any other Company or Corporation owned or controlled by the Government or in any aided institution against a post reserved for WA No.2473/2016 -:14:- such Castes or Tribes or enjoys any other benefit intended exclusively for such Castes or the Tribes by producing a false community certificate shall, on cancellation of the false community certificate, be removed by cancelling the irregular admission in the concerned educational institution or, as the case may be, removed from the said service forthwith and any other benefit enjoyed by him as aforesaid shall be withdrawn forthwith".
15. One argument raised is that S.16(1) cannot be invoked unless an enquiry is conducted in terms with the statutory provisions under Act 11 of 1996. But it is relevant to note that the expert agency had conducted the enquiry. The expert agency is defined under Section 2(g) of Act 11 of 1996 as an officer or team of officers belonging to the anthropological wing in the Kerala Institute for Research, Training and Development Studies of Scheduled Castes and Scheduled Tribes (KIRTADS). The very same agency had conducted enquiry as far as the case of the petitioner is concerned. Petitioner did not have a case that he was not given a copy of KIRTADS's report. He only stated that the Government Order dated 30/3/1995 was not served on him. KIRTADS's report had become final and there is no challenge to the said report. Ext.R1(b) is the Government Order dated 4/5/2000 (G.O(G) No.304/2000 SC.ST) in which it is inter alia WA No.2473/2016 -:15:- stated that in respect of persons who had obtained certificates and had derived benefits prior to the Act coming into force and was found not to be a Scheduled Caste or a Scheduled Tribe, he will be liable for the action in terms of clauses (i) (a) to (c). Clause
(a) is akin to S.16(1). Therefore, even in respect of persons who had obtained employment with a false certificate prior to the Act coming into force, as per Government Order, he will have to be removed from service.
16. In the case on hand, disciplinary action was taken prior to the retirement and since he had retired from service, it was found that he was not entitled for pension and other benefits. Pensionary benefits are payable to employees who have completed the service or had acquired the right to receive pension. It is part of the service condition. But in respect of a person who had entered service fraudulently and when it is found so, there is justification on the part of the Board in denying pension and other pensionary benefits.
17. The position of law had been well settled in the judgment of the Apex Court in Viswanatha Pillai's case (supra). Paragraphs 15 to 18 of the judgment reads thus:- WA No.2473/2016 -:16:-
"15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste Community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Art. 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Art.311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Art. 311 of the Constitution of India. As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Art. 311 of the Constitution of India or the rules framed thereunder. Where an appointment in a service has WA No.2473/2016 -:17:- been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Art. 311 of the Constitution is not attracted at all.
16. In Ishwar Dayal Sah v. State of Bihar, 1987 Lab I.C. 390, the Division Bench of the Patna High Court examined the point as to whether a person who obtained the appointment on the basis of a false caste certificate was entitled to the protection of Art. 311 of the Constitution. In the said case the employee had obtained appointment by producing a caste certificate that he belonged to a Scheduled Caste community which later on was found to be false. His appointment was cancelled. It was contended by the employee that the cancellation of his appointment amounted to removal from service within the meaning of Art. 311 of the Constitution and therefore void. It was contended that he could not be terminated from service without holding departmental inquiry as provided under the Rules. Dealing with the above contention, the High Court held that if the very appointment to the civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Art. 311 of the Constitution can possibly flow. It was held :
"If the very appointment to civil post is vitiated by fraud, forgery or crime or illegality, it would necessary follow that no constitutional rights under Art.311 can possibly flow from such tainted force. In such a situation, the question is whether the person concerned is at all a civil servant of the Union or the State and if he is not validly so, then the issue remains outside the purview of Art.311. If the very entry or WA No.2473/2016 -:18:- the crossing of the threshold into the arena of the civil service of the State or the Union is put in issue and door is barred against him, the cloak of protection under Art.311 is not attracted".
17. The point was again examined by a Full Bench of the Patna High Court in Ritu Mishra v. Director, Primary Education, Bihar, AIR 1988 Patna 26. The question posed before the Full Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his letter of appointment was forged, fraudulent or illegal. The Full Bench held:
"13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of law, no statutory entitlement for salary or consequential right of pension and other monetary benefits can arise. In particular, if the very appointment is rested on forgery, no statutory right can flow from it".
18. We agree with the view taken by the Patna High Court in the aforesaid cases.
It was then contended by Shri Ranjit Kumar, learned senior counsel for the appellant that since the appellant has rendered about 27 years of service the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of the WA No.2473/2016 -:19:- appellant. We do not find any substance in this submission, as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eyes of law. The right of salary or pension after retirement flow from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in case where the appointment was found to have been obtained fradulently and rested on false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for Scheduled Caste thus depriving the genuine Scheduled Caste of appointment to that post does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud."
18. In the light of the above pronouncement of law, it is WA No.2473/2016 -:20:- rather clear that a further enquiry was not contemplated in terms of Article 311 of the Constitution of India. The KIRTADS, the Government as well as the disciplinary authority had arrived at a finding that the writ petitioner had entered the service by producing a false community certificate and therefore the very appointment has to be treated as void, in which event, there is justification on the part of the Board to have issued Ext.P8 order.
In the result, this writ appeal is allowed. We set aside the judgment of the learned Single Judge and the writ petition stands dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
GOPINATH P.
Rp True Copy JUDGE
PS to Judge