Madras High Court
P. Rajasekaran vs The Bank Of Baroda Represented By Its ... on 17 March, 1994
Equivalent citations: (1994)2MLJ47
ORDER Bakthavatsalam, J.
1. The prayer in W.P. No. 998 of 1992 is as follows:
...to call for the records in Roc. 60079/90 (D. 10) dated 15.10.1991 of the fourth respondent and quash the order passed therein and consequently forbear the respondents 1-3 from proceeding further by the issue of writ of certiorarified mandamus.
2. Facts are:
The name of the petitioner herein was sponsored by the Board for appointment in the clerical cadre to the first respondent bank and the first respondent, at the time of appointment, insisted the petitioner to produce a community certificate. As such, the petitioner came up before this Court earlier in W.P. No. 9063 of 1986 praying for the issue of a writ of mandamus to direct the first respondent bank to appoint him as clerk on the basis of the community certificate issued by the Tahsildar Attur, dated 13.8.1992 to the effect that the petitioner belongs to Konda Reddy Community, which is a Scheduled Tribe Community. By order dated 7.2.1989, W.P. No. 9063 of 1986 was allowed with a direction to the respondent, the first respondent herein, to give posting within four weeks from the date of receipt of a copy of he said order. In the said order, the learned Judge observed thus:
...It is made clear that any posting now given is subject to the result of the enquiry to be held by the Collector of Salem at the request of the respondent regarding the genuineness of the community certificate produced by the petitioner. In the event of the respondent establishing that the community certificate produced by the petitioner was a bogus one, it is open to the respondent to terminate the service of the petitioner and take further action as is open to it in accordance with law...
It seems the petitioner was appointed on 3.3.1989 the petitioner was appointed at Talainayar branch, Tanjore District. It seems the respondent bank seems to have initiated proceedings to verify the community certificate and referred the matter to the fourth respondent. It is alleged that the fourth respondent issued a notice on 26.2.1991, calling upon the petitioner to appear for an interview on 11.3.1991 and that it was served on 11.3.1991. It is alleged in the affidavit that since it was not possible for him to collect necessary documentary evidence, he sent a letter on 11.3.1991 to the fourth respondent requesting to postpone the enquiry. It seems that once again notice was issued on 17.9.1991, wherein he was asked to appear for an enquiry on 7.10.1991. It is alleged in the affidavit that he suddenly became ill due to severe pepticulcer and as such he sent a telegram to the fourth respondent expressing his inability to appear for the enquiry. The said telegram was followed by a letter dated 7.10.1991, enclosing a medical certificate. It is stated that while he was under the impression that the fourth respondent would grant time to appear for the enquiry, the impugned order dated 15.10.1991 has been passed cancelling the community certificate issued in favour the petitioner.
3. It is alleged in the affidavit that the enquiry has been conducted by the Revenue Divisional Officer, Salem behind his back and a report dated 13.2.1991 seems to have been forwarded to the fourth respondent. It is stated that in both the notices issued by the fourth respondent, no mention has been made about the report dated 13.21991 of the Revenue Divisional Officer. It is alleged that the fourth respondent has proceeded, purely on the basis of the report of the Revenue Divisional Officer to the effect that he was not a resident of Kondayampalli village, that he obtained from a Deputy Tahsildar and that as per S.S.L.C. book he is not a scheduled tribe. It is alleged that the second respondent, by proceedings dated 18.1.1992, has passed an order of termination, terminating the services of the petitioner, inspite of the observations of this Court, in the earlier writ petition. It is stated that the effect of the judgment of the Division Bench of this Court in W.P. No. 9063 of 1986 is that the second respondent can terminate the services of the petitioner, only after conducting a proper disciplinary proceedings by issuing necessary charge-sheets, wherein it should be established beyond doubt that the community certificate issued by the petitioner is a bogus one. It is stated that merely on the report of the fourth respondent, the second respondent cannot come to a conclusion that the certificate issued to the petitioner, is a bogus one.
4. The petitioner alleges that the impugned order of the fourth respondent dated 15.10.1991 is illegal and that the fourth respondent has no jurisdiction to pass the impugned order without communicating the copy of the report of the Revenue Divisional Officer which is relied upon to come to the conclusion that the petitioner does not belong to scheduled tribe community. It is also stated that the community certificate bears the seal of the Tahsildar and that it was signed only by a person in the capacity as the Tahsildar. It is also stated that a perusal of the S.S.L.C. book discloses that the name of the community was not written and that merely because the name of the community was not written, it may not be held that the person does not belong to scheduled tribe community. It is stated that the fourth respondent ought not to have passed the final orders, inspite of the fact that he forwarded a telegram and letter stating that he fell ill suddenly.
5. A counter-affidavit has been filed by the fourth respondent. It is stated that the Assistant General Manager, Bank of Baroda, Madras by letter dated 20.5.1990, requested the Collector Salem to verify the genuineness of Kondareddi community certificate issued to the petitioner herein by Tahsildar, Attur. It is stated that the Sub Collector, Salem was requested to conduct local enquiry and submit his report, that the Revenue Divisional Officer, Salem by report dated 13.2.1991 has stated that the individual has obtained the community certificate by furnishing false residential address and that there is no Kondareddi people in Kondayampalli Village. It is stated that in order to provide opportunity to prove his community, the petitioner was asked to produce documentary and oral evidence before the Collector of Salem on 113.1991 and that the petitioner did not appear for that. Again another notice was issued for personal hearing on 7.10.1991 and that he was not able to avail of the opportunity given to him to prove his caste and as such the community certificate produced by the petitioner was treated as not genuine and ordered to be cancelled. It is also stated in the counter-affidavit that the local enquiry conducted in the village clearly revealed that the petitioner does not belong to Kondareddy Community. It is also stated that a notice was issued to the petitioner on 26.2.1991, to produce oral and documentary evidence by appearing before the Collector, Salem on 11.3.1991 and that the petitioner failed to appear on that date. It is also stated that again by notice, the petitioner was asked to appear before the Collector, Salem on 7.10.1991 and again the petitioner did not appear and as such the impugned order came to be passed. It is stated in the counter-affidavit that the petitioner has failed to avail of the opportunity provided to him by the fourth respondent, and that he had attended the enquiry, he might have the chance of perusing the report of the Revenue Divisional Officer and other enquiry records. It is also stated in the counter-affidavit that the fourth respondent has issued cancelling the community certificate issued to the petitioner, as he failed to prove his claim and not sent any report as stated by the petitioner. It is also stated that the order of cancellation is legal, lawful and not violative of principles of natural justice. In para.9 of the counter-affidavit, it is claimed that the enquiry of the Village Administrative Officer revealed that the petitioner never lived in the village, that no Kondareddi people are living in Kondayampalli village, that the petitioner obtained community certificate by furnishing false residential address and as such the community certificate was treated as not genuine and ordered to be cancelled. It is also stated that a perusal of the certificate reveals that the certificate has been issued in the name of Tahsildar and not in the name of Tahsildar-in-charge and that the signatory of the certificate had never worked as Tahsildar, Attur. It is also claimed in the counter-affidavit that the, community certificate to scheduled caste and scheduled tribe have to be issued only by the Tahsildar and not by the Deputy Tahsildaras contended by the writ petitioner. It is also stated that in the S.S.L.C. book of the petitioner, against entry in serial No. (iii) community whether belongs to S.C., S.T., M.B.C., other B.Cs. etc it is clearly entered as 'O'. As such, it is contended that the petitioner cannot claim that he belongs to scheduled tribe community. It is also claimed in the counter-affidavit that in the second notice dated 17.9.1991 it was stated that if the petitioner failed to attend the enquiry on 7.10.1991 it will be construed that he has no evidence to prove his community and that the telegram sent by the petitioner reached the fourth respondent on 8.10.1991 and the letter of the petitioner reached after the completion of enquiry.
6. No counter-affidavit has been filed by the respondent Bank of Baroda as it is seen in the impugned order itself that the appointment is subject to production of his community certificate.
7. After hearing Mr. N. Kannadasan, the learned Counsel appearing for the petitioner and of Mr. B. Narasimhan, the learned Counsel appearing for the respondent Bank of Baroda and of Mr. Veerabadran the learned Government Advocate and on going through the materials placed before this Court, the short point that arises for consideration is whether the impugned order has been passed in violation of the principles of natural justice and whether it is liable to be set aside on the ground that the petitioner herein was not given an opportunity.
8. The entire files have been produced before me. As I have already stated, Venkataswami, J. in W.P. No. 9063 of 1986 by order dated 7.2.1989, has observed that posting may be given to the petitioner, subject to the result of the enquiry to be held by the Collector of Salem, with regard to the community certificate issued to the petitioner. Learned Judge has further held that in the event of the respondent establishing that the community certificate produced by the petitioner was a bogus one, it is open to the respondent to terminate the service of the petitionerand take further action as is open to it in accordance with law. In pursuance of the orders of the learned Judge, mentioned above, it seems that a notice has been issued to the petitioner to appearon 11.3.1991, and this letter is dated 26.2.1991. The petitioner, by letter dated 11.3.1991 replied to the District Collector, Salem asking for an adjournment of the enquiry to collect the documents. Another letter was issued on 17.9.1991, to the petitioner to appear for the interview on 7.10.1991 with his witnesses and documents. The petitioner seems to have sent a telegram stating that he is not well and that a letter follows. A seal dated 8.10.1991 is found on the said telegram. The letter of the petitioner, dated 7.10.991, has been received by the District Collector, Salem on 9.10.1991. The letter of the petitioner has been enclosed with a medical certificate. By that time, the impugned order came to be passed stating that the petitioner has failed to avail the opportunities provided to him to prove his community, and as such the 'Kondareddi' community certificate issued to the petitioner by the Tahsildar, Attur on 13.8.1982 is treated as not genuine and ordered to be cancelled, on a perusal of the files, it is seen that the Revenue Divisional Officer, Salem has sent a letter to the Collector, Salem stating that he has made enquiries in the village and that the enquiry reveals that the petitioner never resided in Kondayampalli village and that there are no 'Kondareddi' people in the said village. It has been further stated in the said report that the petitioner had managed to get the certificates by giving false address. This report of the Revenue Divisional Officer, Salem has been relied upon in the impugned order. There is no dispute that the petitioner is not aware of the contents of the report of the Revenue Divisional Officer, Attur dated 13.2.1991. As rightly pointed out by the learned Counsel for the petitioner, the Revenue Divisional Officer has made an enquiry behind the back of the petitioner. It is true that the petitioner did not appear for the enquiry on 7.10.1991 before the Collector, Salem, as stated in the counter affidavit. But he has sent a telegram and also a letter. The order was passed only after the receipt of telegram. In my view, the enquiry officer should have informed the petitioner about the content of the enquiry, and not to have relied upon the enquiry to hold that the community certificate issued to him is a bogus one. Assuming for a moment, that the petitioner did not avail of the opportunity given to him, in my view, it is the duty of the fourth respondent herein to inform the petitioner about the contents of the report of the Revenue Divisional Officer, Salem, dated 13.2.1991, if that report is to be relied upon against the petitioner. That has not been done in this case. Whether the petitioner has obtained a genuine community certificate or not, whether it has been issued by proper and competent authority and whether the entries in the S.S.L.C. book of the petitioner have any bearing on the case can be decided only if the substance of the report of the Revenue Divisional Officer, Salem is given to the petitioner. When the petitioner herein is not aware of the local enquiry conducted and when the said report of the Revenue Divisional Officer, Salem is relied upon in the impugned order, I am of the view that the principles of natural justice have been violated. The petitioner should have been put on notice about the local enquiry and he should have been asked to explain the allegations which are found in the report of the Revenue Divisional Officer. Admittedly, it has not been done in this case. It cannot be a defence to say that had the petitioner attended the enquiry on 7.10.1991, he would have come to know about the contents of the report of the Revenue Divisional Officer. In my view, on the facts and circumstances of this case, the principles of natural justice have been violated, since the petitioner is not aware of the report of the Revenue Divisional Officer, Salem in which the allegations against the petitioner have been made and the same have been relied upon in the impugned order of the fourth respondent. As I have already stated, fail to understand the contention made in the counter-affidavit that had the petitioner appeared for the enquiry on 7.10.1991, he would have known the substance of the report of the Revenue Divisional Officer, Salem. In S.L. Kapoor v. Jagmohan , with regard to the violation of principles of natural justice, the Supreme Court has observed as follows: (at page 147) ...The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof denial of natural justice is unnecessary. It will comes from a person who has denied justice that the person who has been denied justice is not prejudiced....
In Neelima Misra v. Harinder Kaur Paintal , the Supreme Court has observed as follows:
...An administrative order which involves civil consequences must be made consistently with the rule expressed in the Latin maxim audi alteram partem. It means that the decision maker should afford to any party to a dispute an opportunity to present his case.
The shift now is to a broader notion of "fairness" or "fair procedure" in the administrative action. As far as the administrative officers are concerned, the duty is not so much to act judicially as to act fairly. For this concept of fairness, adjudicative settings are not necessary, nor it is necessary to have lites inter parties. There need not be any struggle between two opposing parties giving rise to a 'list'. There need not be resolution of lis inter parties. The duty to act judicially or to act fairly may arise in widely different circumstances. It may arise expressly or impliedly depending upon the context and consideration. All these types of non-adjudicative administrative decision making are now covered under the general rubric of fairness of in the administration. But when then even such an administrative decision unless it affects one's personal rights, or the loss of or prejudicially affects something which would juridically be called atleast a privilege does not involve the duty to act fairly consistent with the rules of natural justice.
If the facts of the case on hand are tested in the light of the principles laid down by the Supreme Court in the decisions cited supra, I am of the view that the impugned order dated 15.10.1991 is liable to be set aside. As such, the impugned order dated 15.10.1991 is set aside and the writ petition will stand allowed. There will be no order as to costs.