Central Administrative Tribunal - Allahabad
Ram Sewak vs Union Of India Through Its Secretary on 26 September, 2012
(Reserved on 30.08.2012) CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ALLAHABAD this the 26th day of September, 2012 Present: HONBLE MR. SANJEEV KAUSHIK, MEMBER- J HONBLE MR. SHASHI PRAKASH, MEMBER-A ORIGINAL APPLICATION NO. 500 of 2009 Ram Sewak, son of Shri Daya Ram, Resident of Quarter No. 44/2, Type-I, O.E.F Estate, Hazratpur, Firozabad (U.P). Applicant. V E R S U S 1. Union of India through its Secretary, Ministry of Defence, South Block, New Delhi. 2. Additional Director General, Ordnance Equipment Factories, Gr. Hqrs, G.T. Road, Kanpur. 3. General Manager, Ordnance Equipment Factories, Gr. Hqrs., Hazratpur, Firozabad (U.P). 4. Works Manager / Administration, Ordnance Equipment Factories, Gr. Hqrs. Hazratpur, Firozabad. . . . . . . . . . . . . Respondents Present for the Applicant: Shri Shyamal Narain Present for the Respondents: Shri S. Srivastava (not present) O R D E R
By Honble Mr. Sanjeev Kaushik, JM By means of the instant original application filed under section 19 of Administrative Tribunals Act 1985, the applicant has impugned the order dated 27.08.2007 passed by the respondent No. 3 and order dated 01.12.2007 passed by the Appellate Authority i.e. respondent No. 2 rejecting his statutory appeal dated 30.08.2007.
2. The facts, in brief, are that the applicant joined the respondents department as Tailor / Semi Skilled on permanent basis pursuant to the appointment letter dated 20.11.2004. After completion of two years probation period satisfactorily and order dated 30.11.2006 was passed by the respondent No. 4. In due course the applicant was promoted to the post of Tailor Skilled by order dated 08.01.2007. He was served with a show cause notice on 03.04.2007 requiring him to submit the permanent Schedule Tribe Certificate within 20 days otherwise his services shall be terminated in view of para 6 of the appointment letter (Annexure A-6). The applicant submitted his reply on 20.04.2007 which was supplemented by reply dated 07.07.2007 (Annexure A-7). Thereafter the respondent No. 3 by order dated 27.08.2007 terminated the services of the applicant. In terms of Rule 26 of CCS (CCA) Rules 1965 the applicant preferred statutory appeal on 30.08.2007, which was rejected by the Appellate Authority / Respondent No. 2 vide order dated 01.12.2007 , hence the original application.
3. Pursuant to the notice the respondents filed detailed Counter Affidavit and contradicted the averments of the applicant. It is not disputed that the applicant is a permanent employee of the respondents department, who was also given promotion after his appointment. It is stated that pursuant to a directive / order dated 24.06.2005 issued by the Ordnance Factory Board as on verification by C.B.I, it was revealed than 30% of the S.T. Certificate produced by the candidates were either forged or false in respect of candidates, who were appointed after 1995 (Annexure CA-3). It is only in this context veracity of the certificate of the applicant was verified through the District Magistrate, Morena (M.P), who vide letter dated 06.03.2007 (Annexure CA-4) informed that the S.T. Certificate No. 1276 dated 13.08.1998 in the name of Ram Sewak, S/o Daya Ram was issued on temporary basis with the validity of six months from the date of issue. It is also submitted that the certificate was issued for educational purpose only. It is alleged that the applicant has secured the appointment on the basis of temporary S.T Certificate, therefore, rightly he was served with a show cause notice and ultimately the termination order of the applicant from service was passed. It is further submitted that the appeal preferred by the applicant was also considered by the Appellate Authority, who after careful examination of the facts and the points raised in the appeal has rejected the same being devoid of merits.
4. The applicant has also filed Rejoinder Affidavit and Suppl. Affidavit.
5. We have heard Shri S. Narain , counsel for the applicant and Shri D. Tiwari, holding brief of Shri S. Srivastava for respondents.
6. Learned counsel for the applicant vehemently argued that the impugned order of termination is in fragrant violation of principle of natural justice as the respondents have not appreciated what has been stated by the applicant in his reply to the show cause notice that nowhere in his certificate issued by the competent authority it has been stated that the certificate is only valid for 6 months and it can be used for educational purpose only. He drawn our attention to the Caste Certificate dated 13.08.1998 (Annexure A-10) and submitted that the reasoning given in the impugned order of termination that it is temporary and for a period of six months is without basis and thus the impugned order cannot be sustained. He further urged that the inquiry regarding genuineness of Caste Certificate was also conducted behind his back and after having ex-parte inquiry report from the District Magistrate, Morena the impugned order of termination has been passed. Lastly he argued that the action of the respondents is totally illegal and bad in law as it is contrary to the judgment of Apex Court passed in the case of Kumari Madhuri Patil and another Vs. Additional Commissioner Tribal Development and others 1994 (6) SCC 241 which was subsequently followed in the case of State of Maharashtra and Another Vs. Vijay Pandotrao Visale and another - 2009 STPL (Web) 158 SC. He further argued that the benefit of caste has already been given to his father, who was an employee of the same very organization and has been superannuated on 31.10.2010 (Annexure RA-1).
7. Per contra learned counsel for the respondents argued that the impugned order has been passed after complying the principle of natural justice i.e. before passing the termination order a show cause notice was issued to the applicant and after having report from the District Magistrate, Morena, from where the certificate was issued, the competent authority has taken the decision. The appeal of the applicant was also find devoid of merits and the same was rejected. Learned counsel for the respondents urged that since the certificate was for a period of six months and that too for education purpose , therefore, on the same very certificate the applicant cannot seek any employment. Thus the action of the applicant in not informing the employer that his caste certificate is temporary and for a limited purpose, is illegal and accordingly after judging the genuineness of the caste certificate of the applicant impugned order of termination has been passed.
8. We have considered the rival submissions and have gone through the record with the able assistance of respective parties.
9. We have perused the Caste Certificate dated 13.08.1998 (Annexure A-10). Nowhere it is mentioned that the certificate was issued temporarily or for a particular period, as suggested by the respondents, or it is to be renewed after specific period. It only says that the applicant belongs to Gond Community , which has been declared as S.T. Therefore, the arguments of the respondents is contrary to the certificate issued by the competent authority and accordingly cannot be accepted. Our attention has also been drawn towards letter dated 01.08.1996 issued by the Government of M.P regarding issuance of Caste Certificate to SC/ST candidates. Alongwith that two formats have been appended. One for Permanent Certificate and another for Temporary Certificate. As per clause 8 (1) of the Notification dated 01.08.1996 , the permanent certificate is to be issued on pink card whereas , as per clause 8(2), the temporary certificate is to be issued on yellow card. Therefore also the arguments of the respondents cannot be accepted. The respondents have also not rejected the case of the applicant on the ground that he does not belong to ST community. His services were terminated only on the ground that while seeking appointment he appended a caste certificate, which is temporary and for six months. It is nowhere stated by the respondents that the caste to which the applicant belongs doe not fall under the S.T category . Moreover, the father of the applicant, who was the employee of the same organization, was also extended the benefit of ST community, therefore, also the impugned order does not sustain. Lastly , the impugned order is also against the judgment of Apex Court in the case of Kumari Madhuri Patil and another (Supra) where the Apex Court has laid down the guide lines that before passing any order on the Caste Certificate the authority has to refer the matter to a Committee, which is competent to make comments on the same and thereafter the employer can pass further orders. The above dictum was subsequently followed in case of Director of Tribal Welfare, Government of A.P Vs. Laveti Giri 1995 (4) SCC 32 and Union of India Vs. Dattetray 2008 (3) SCALE 235 holding that the authority, which is empowered under law to examine the genuineness of the Caste Certificate, is Caste Scrutiny Committee. The Bombay High Court has also taken similar view in W.P. (C) No. 4743/2008 lying down the procedure to be followed for issuance of fresh caste certificate or verification of caste certificate already issued by the authorities . Bo no stretch of imagination, Mudhuris case (Supra) lays down that wherever the issue of correctness of a caste certificate comes up in question, no authority other then Caste Scrutiny Committee can enquire into the same. It appears that the Tribunal has been swayed by the guidelines Nos. 11 and 12 issued by the Supreme Court in holding that no authority other then Caste Scrutiny Committee can examine the correctness of a Caste Certificate. The purport of said guidelines is that the finding arrived at by Caste Scrutiny Committee regarding genuineness of a caste certificate can only be assailed by way of filing a petition under Article 226 of Constitution of India before the High Court and that the said finding cannot be assailed in a suit or in any other proceeding.
10. In the case of State of Maharashtra and Another Vs. Vijay Panditrao Visale (Supra) the Apex Court has held as under: -
3. The short controversy which arises for consideration in this case is whether respondent No. 1 Vijay Panditrai Visale belongs to Thakur (Scheduled Tribe) or not. In our considered view, there has to be a comprehensive inquiry by the Caste Scrutiny Committee (for short the Committee). The Committee must take into consideration entire documentary evidence, oral evidence, ethnic linkages and affinity test and arrive at a definite conclusion as to whether the respondents belongs to the category of Thakur (Scheduled Tribe).
4. We direct that the Caste Scrutiny Committee shall carry out this exercise immediately without being influenced by any observation made in the impugned judgment of the High Court. The Committee may permit parties to adduce additional evidence.
5. The matter is remitted to the Caste Scrutiny Committee and the appeal is disposed of accordingly, leaving the parties to bear their own costs.
11. In view of the above the Original Application is allowed. The impugned orders dated 27.08.2007 and 01.12.2007 are hereby quashed and set aside. The respondents are directed to reinstate the applicant in service forthwith. However, if the respondents still feel that the caste of the applicant does not come within S.T category, they are at liberty to go according to the decision of Honble Supreme Court rendered in the case of Km. Madhuri Patil (Supra) . No costs.
(Shashi Prakash) (Sanjeev Kaushik)
Member-A Member-J
/Anand/
??
??
??
??
9
O.A No. 500/2009