Kerala High Court
Pradeep Kumar vs E.K.Prakash on 27 January, 2020
Author: V.G.Arun
Bench: K.Vinod Chandran, V.G.Arun
"CR"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1941
OP(KAT).No.3215 OF 2013(Z)
TA 7592/2012 DATED 14-06-2013 OF KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/S:
1 PRADEEP KUMAR, S/O.LKOCHURAMAN KANI, PRADEEP
NIVAS, KALLANKUDI AANAPPARA, PO VITHURA
VILLAGE, NADUMANGADU TALUK, THIRUVANANTHAPURAM
DISTRICT, PIN 695 521.
2 PUSHPAKARAN
S/O.SREEDHARAN KANI, THEKKEKLARA PUTHEN VEEDU,
VENGATHARA, AANAPPARA PO, VITHURA VILLAGE,
NEDUMANGADU TALUK,
THIRUVANANTHAPURAM DISTRICT, PIN 695 521
3 BHUVANACHANDRAN
S/O.CHELLAPPAN KANI, THADATHARIKATHU VEEDU,
THACHARUKALA,AANAPPARA PO, NEDUMANGADU TALUK,
THIRUVANANTHAPURAM DISTRICT,PIN 695 521
4 A.K.VIPUL DEV
ADVOCATE, THIRUVANANTHAPURAM,RESIDING AT
KANJIRAVILAKATHU KALLUVILA VEEDU, OORUTTUKALA,
NEYYATTINKARA PO, NEYYATTINKARA VILLAGE,
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM
DISTRICT, PIN 695 121.
5 M.JAWAHARLAL, RESIDING AT SUNDARI VIZHINJAM
STREET, VIZHINJAM PO, NEYYATTINAKRA TALUK, PIN
695 521.
BY ADV. SRI.VADAKARA V.V.N.MENON
O.P.(KAT) Nos.3215/2013 & 223/2014
2
RESPONDENT/S:
1 E.K.PRAKASH
SPECIAL SECRETARY TO GOVERTNMENT, FINANCE
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, RESIDING AT 4/VII TEACHER'S
QUARTERS,COLLEGE OF AGRICULTURE, VELLAYANI PO,
THIRUVANANTHAPURAM,PIN 695 012.
2 STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY ,
SECRETARIAT, THIRUVANANTHAPURAM ,PIN 695 001.
3 PRINCIPAL SECRETARY TO GOVERNMENT
SCHEDULED CASTES/SCHEDULED TRIBES DEVELOPMENT
(G) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM,PIN 695 001.
R1 BY ADV. SRI.P.GOPALAKRISHNAN NAIR
R1-2 BY GOVERNMENT PLEADER
R1 BY ADV. SRI.M.SREEKUMAR
OTHER PRESENT:
SR.GP SRI.P.NARAYANAN
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN
FINALLY HEARD ON 27.01.2020, ALONG WITH
OP(KAT).223/2014(Z), THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
O.P.(KAT) Nos.3215/2013 & 223/2014
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1941
OP(KAT).No.223 OF 2014
TA 7592/2012 DATED 14-06-2013 OF KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/S:
1 STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695001.
2 THE SECRETARY TO GOVERNMENT,
SCHEDULED CASTE/SCHEDULED TRIBES DEVELOPMENT(G)
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM,PIN-695001.
SRI.P.NARAYANAN, SENIOR GOVT. PLEADER
RESPONDENT/S:
PRAKASH E.K.
SPECIAL SECRETARY TO GOVERNMENT, FINANCE
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, RESIDING AT 4/VII TEACHERS
QUARTERS, COLLEGE OF AGRICULTURE,
VELLAYANI P O, THIRUVANANTHAPURAM-22.
R1 BY ADV. SRI.M.SREEKUMAR
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 27.01.2020, ALONG WITH OP(KAT).3215/2013(Z), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(KAT) Nos.3215/2013 & 223/2014
4
"CR"
JUDGMENT
V.G.ARUN, J.
These original petitions are filed, challenging the order in T.A.No.7592 of 2012 of the Kerala Administrative Tribunal, by which the Tribunal set aside Ext.P15 Government order. By Ext.P15, the Government found the applicant to have obtained employment by producing bogus certificate to the effect that he belongs to the Schedule Tribe Oorali Community. The brief facts leading up to the issuance of Ext.P15 are narrated hereunder, describing the parties as per their status in the original application:-
2. As per Ext.P1, applications were invited from eligible SC/ST candidates for appointment to the post of Under Secretary in the Finance Secretariat of the Government.
The applicant participated in the selection process and on O.P.(KAT) Nos.3215/2013 & 223/2014 5 being successful, was appointed under Ext.P3 order dated 29.04.1985. In order to prove his caste status, the applicant had produced Ext.P4 caste certificate issued by the Tahasildar, certifying him to be a member of the Hindu Oorali Tribe, and Ext.P2 certificate issued by the Tribal Development Officer to the effect that the community Mala Oorali and Oorali are one and the same. In the year 1995, the applicant was served with a notice dated 30.10.1995 issued by the Vigilance Officer of the KIRTADS, requiring the applicant to attend an enquiry relating to his caste status. The applicant attended the enquiry as directed and submitted necessary documents to sustain his claim of being a member of the Schedule Tribe Oorali Community. Later, the applicant was served with a notice issued by the Chairman of the Scrutiny Committee constituted under the Kerala (Scheduled Castes and Scheduled Tribes Regulation of Issue of Community O.P.(KAT) Nos.3215/2013 & 223/2014 6 Certificates) Act, 1996 (hereinafter called 'the Act 11 of 1996'), alleging that the applicant had falsely claimed to be a member of the Oorali community and proposing to cancel the Schedule Tribe certificate thus secured by the applicant and to take consequential action. The applicant appeared and made submissions before the Scrutiny Committee and thereafter, by order dated 7.3.1998 issued by the Chairman of the Scrutiny Committee, the Scheduled Tribe claim of the applicant was rejected and he was declared to be a member of the Kuravan Community (Scheduled Caste).
3. The report was submitted before the Government for further follow up action, thereupon the applicant filed O.P.No.11925 of 1998 challenging the proceedings of the KIRTADS and the proposal to terminate him from service. The original petition was considered and decided under Ext.P7 judgment dated 27.5.2002. In Ext.P7, it was found that the O.P.(KAT) Nos.3215/2013 & 223/2014 7 report of the Vigilance Officer, which was the basis for the decision of the Scrutiny Committee, was prepared in gross violation of the principles of law, inasmuch as no opportunity was given to the applicant to cross-examine the persons whose statements were adverted to and relied on in the report. It was also found that the Scrutiny Committee did not give reasonable opportunity to the applicant to challenge the statements relied on by the Vigilance Officer. It was held that the Scrutiny Committee did not follow a fair procedure in accordance with the principles of natural justice. Even though it was observed that the jurisdictional precondition for taking action under Section 11(1) of the Act 11 of 1996 is that the false community certificate should have been fraudulently obtained by a person who did not belong to any of the Scheduled Castes or Scheduled Tribes and that no action is contemplated under the Act against the members of O.P.(KAT) Nos.3215/2013 & 223/2014 8 Scheduled Castes or Scheduled Tribes, since the provisions of the Act are not meant for dealing with the case of a member of the Scheduled Caste claiming Scheduled Tribe status or vice versa, the issue was left unanswered. It was finally held that no one had a case that the applicant had acted fraudulently and that it was an admitted fact that the family of the applicant had been claiming to be the members of the Oorali Community from the time of his grandfather and therefore, the applicant cannot be accused of having obtained the caste certificate fraudulently. Based on the said findings, the original petition was allowed and the proceedings against the applicant quashed and at the same time, it was declared that the findings in the report of the Vigilance Officer, KIRTADS will not bind the applicant, but at the same time, it will not stand in the way of the Government using the materials contained in the report, in accordance with law, to launch any fresh action O.P.(KAT) Nos.3215/2013 & 223/2014 9 against the applicant, if legally permissible.
4. In purported exercise of the liberty granted under Ext.P7, the applicant was issued with notice dated 5.04.2008 by the Vigilance Cell of the KIRTADS, intimating that an anthropological investigation regarding his caste status was proposed to be conducted. As the proposed proceedings were not in tune with the directions in Ext.P7, the applicant challenged the notice before this Court in W.P.(C) No.22102 of 2008. Pending the writ petition , the notice was withdrawn by the KIRTADS and thereupon, the writ petition was closed as infructuous, without prejudice to the right of the Government to proceed in accordance with the directions in Ext.P7 judgment.
5. Much later, the applicant was served with another notice dated 30.04.2011 issued by the 2 nd respondent, the Principal Secretary, SC/ST Development Department, O.P.(KAT) Nos.3215/2013 & 223/2014 10 requiring the applicant to appear in person for a hearing to be conducted regarding his caste claim. The applicant submitted Ext.P10 reply pointing out that the proceedings were without jurisdiction and was against the directions contained in Ext.P7 judgment. Without considering the objection, another notice was issued to the applicant proposing to conduct the hearing, to which he submitted Ext.P11 reply. Thereupon, the applicant was served with Ext.P12 communication, stating that the present proceedings were being pursued in accordance with the directions in Ext.P7 judgment. Under the notice, the applicant was required to appear for the hearing scheduled on 22.06.2011. The applicant submitted Ext.P13 objection on 22.06.2011 and the hearing was adjourned to 03.08.2011. On 03.08.2011, the applicant submitted Ext.P14 request for adjournment on the ground that he had to take his daughter to the Doctor for urgent medical consultation which O.P.(KAT) Nos.3215/2013 & 223/2014 11 could not be postponed. The request was not acceded to and the second respondent proceeded to issue Ext.P15 order dated 26.09.2011, primarily based on the report of the KIRTADS. It was held that the genealogical aspects and facts established the applicant to have concealed his real caste identity of having procured a wrong community certificate and securing employment in Government service by using the bogus certificate, thereby usurping the opportunity of a deserving Scheduled Tribe candidate. It was held that the real caste of the applicant is Kuravan (Scheduled Caste) and that the appointment of the applicant is ab initio illegal and the illegality is to be set right by terminating the applicant from service. Accordingly, the Secretary, General Administration Department, was directed to initiate necessary steps to terminate the applicant from service forthwith.
6. The applicant filed W.P.(C) No. 26067 of 2011 O.P.(KAT) Nos.3215/2013 & 223/2014 12 challenging Ext.P15, which was later transferred to the Kerala Administrative Tribunal and numbered as T.A.No.7592 of 2012. The challenge against Ext.P15 was on the ground that the impugned order and the proceedings leading up to it were not in conformity with the directions in Ext.P7. It was contended that Act 11 of 1996 do not provide for cancellation of community certificate of a member of either the Scheduled Caste or the Scheduled Tribe and the provisions are applicable only when persons other than those belonging to the Scheduled Castes and Scheduled Tribes claim the benefit of reservation based on bogus certificates. Yet another ground of challenge was that Ext. P15 was issued in violation of the fundamental principles of natural justice and fair play. The finding in Ext.P7 judgment was relied on to contend that the applicant had not obtained the caste certificate fraudulently and in the absence of finding regarding fraud, the certificate O.P.(KAT) Nos.3215/2013 & 223/2014 13 could not be cancelled or further proceedings initiated. It was submitted that no benefit was derived by the applicant by producing a caste certificate showing him to be a member of the Scheduled Tribe since the selection was limited to eligible SC/ST candidates and no special concessions were granted to Scheduled Tribe candidates under Ext.P1 notification.
7. The Tribunal found force in the contention of the applicant that the enquiry report of the Vigilance Officer, which was evidently prepared behind his back, had been blindly relied on by the Government to reject his claim. That, the materials based on which conclusions were arrived at by the Vigilance Officer were not served on the applicant and the witnesses who gave adverse statements were not made available for cross-examination. It was hence found that the defects regarding violation of natural justice pointed out in Ext.P7 judgment subsists.
O.P.(KAT) Nos.3215/2013 & 223/2014 14
8. After referring to the Preamble and Section 11 of Act 11 of 1996, the Tribunal proceeded to hold that the Act is intended to take action against persons, who do not belong to any of the Scheduled Castes or Scheduled Tribes, obtaining false community certificate and not to prevent a member of the Scheduled Caste from claiming the status of Scheduled Tribe or vice versa. Based on the findings in Ext.P7 judgment, it was held that the conduct of the applicant can in no way be described as a fraudulent act. It was found that the jurisdictional precondition for taking action under Section 11 of Act 11 of 1996, viz; (i) a person not belonging to any SC/ST obtaining a certificate that he belongs to SC/ST and (ii) the competent authority forming an opinion that the certificate was obtained fraudulently, were absent in the case and therefore, the action against the applicant under the provisions of Act 11 of 1996 was ultra vires and unauthorised. O.P.(KAT) Nos.3215/2013 & 223/2014 15 Based on the findings, Ext.P15 was quashed and the transfer application allowed.
9. Challenging the order of the Tribunal, the Government filed O.P.(KAT) No.223 of 2015 and the party respondents, who got themselves impleaded in the original application, supporting the rejection of applicant's claim as a member of the Scheduled Tribe and the proposal to terminate him from service, filed O.P.(KAT) No.3215 of 2013. The challenge against the findings of the Tribunal are mainly on the following grounds:-
(a) The interpretation of the Tribunal of the provisions of Act 11 of 1996 is patently illegal. No provision in the Constitution of India or in Act 11 of 1996, enables the member of a Scheduled Caste community, to usurp the rights of persons belonging to the Scheduled Tribe Community, based on bogus caste certificate, and vice versa.
O.P.(KAT) Nos.3215/2013 & 223/2014 16
(b) The finding of the Tribunal that there was no fraud involved in the applicant having claimed Scheduled Tribe status, is challenged on the strength of precedents and the findings of the KIRTADS, rendered after an anthropological investigation, finding the applicant to be a person belonging to the Scheduled Caste Kuravan Community.
(c) The KIRTADS had conducted enquiry into the caste status of the applicant after due service of notice and based on information collected from the applicant's own relatives in the paternal and maternal sides. KIRTADS being an expert agency which submits anthropological investigation reports, which are technical in nature, the issue of violation of principles of natural justice do not arise.
10. The learned Senior Government Pleader also contended that the Tribunal had proceeded on the basis that Ext.P7 judgment had the effect of res judicata with respect to O.P.(KAT) Nos.3215/2013 & 223/2014 17 the issues left open for consideration by the Government. It is contended that an erroneous judgment on a question of law, which sanctions something that is illegal, cannot be allowed to operate as res judicata. That, the findings in Ext.P7 with regard to the commission of fraud by the applicant being erroneous and there being no legal embargo against a Scheduled Caste person applying for a Scheduled Tribe certificate, there was no res judicata in considering those issues afresh; is the contention. In support of this proposition, the decision of the Apex Court in Canara Bank v. N.G.Subbaraya Setty and another [(2018) 16 SCC 228] is pressed into service. We desist from dilating on the issue since, under Ext.P7 judgment, the Government was granted liberty to launch fresh action against the applicant. We are of the considered opinion that in such circumstances, the principle of res judicata has no application. O.P.(KAT) Nos.3215/2013 & 223/2014 18
11. Heard.
12. As far as the first ground of challenge is concerned, the preamble and Section 11 of Act 11 of 1996, which was referred to by the Tribunal, are to be looked into. The preamble reads as under:-
"An Act to provide for and to regulate the issue of Community Certificates to members of the Scheduled Castes and the Scheduled Tribes in the State of Kerala.
Preamble. --WHEREAS it is considered necessary to devise and provided for a strict procedure for and to regulate the issue of community certificates to members of the "Scheduled Castes and the Scheduled Tribes in the State of Kerala ; AND WHEREAS in order to curb effectively the evil practices of securing such certificates by persons other than those belonging to the Scheduled Castes and Scheduled Tribes for claiming the benefits of reservation and such other benefits meant for the Scheduled Castes and the Scheduled Tribes and to make provisions for prescribing punishment, therefore and to provide for matters connected therewith or incidental thereto."
Section 11 of the Act is as follows:-
"11. Cancellation of false community certificate. --(1) Where, before or after the commencement of this Act, a person not belonging to any of the Scheduled Castes or the Scheduled Tribes has obtained a false community certificate to the effect that either himself or his children belongs or belong to such Caste or the Tribe, the Scrutiny Committee may either suo motu or on a written complaint or report by any person or authority, call for the records and enquire into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall, by order, cancel the certificate O.P.(KAT) Nos.3215/2013 & 223/2014 19 after giving the person concerned an opportunity of making a representation, if any.
(2) The powers of the nature referred to in sub- section (1) may also be exercised by the Government.
(3) The Scrutiny Committee while performing its functions for verification and cancellation of community certificates shall follow such procedure as may be prescribed."
13. The intention of Act 11 of 1996, as propounded by its preamble, is to device and provide a strict procedure for, and to regulate the issue of community certificate to the members of the Scheduled Castes and Scheduled Tribes in the State of Kerala and to curb the evil practice of securing such certificates by persons other than those belonging to the SC/ST. Section 11 of the Act provides for cancellation of false community certificate obtained by persons not belonging to any of the Scheduled Caste or Scheduled Tribes. It cannot be said that there is no specific provision in the Act for cancellation of community certificate obtained by a member of the Scheduled Caste community, claiming himself to be a member of Scheduled Tribe community and vice versa. O.P.(KAT) Nos.3215/2013 & 223/2014 20 Section 11 has to be read disjunctively, and when so read it provides that any person not belonging to Scheduled Caste, if obtains a false certificate to the effect that he belongs to Scheduled Caste or any person who does not belong to Scheduled Tribe obtains a false certificate to the effect that he belongs to Schedule Tribe, the certificate is liable for cancellation. It cannot be presumed for a moment that the legislature condoned the false device by which a Scheduled Caste obtains a certificate of Scheduled Tribe or vice versa. A Scheduled Caste member, cannot by such false devise, appropriate the reservation of a Scheduled Tribe nor can a Scheduled Tribe member appropriate the benefit given to the Scheduled Castes. It is true that Section 15 A, providing penalty for obtaining a fraudulent community certificate by a Scheduled Caste member as Scheduled Tribe and vice versa was introduced only with effect from 01.02.2007. As rightly O.P.(KAT) Nos.3215/2013 & 223/2014 21 found by the Tribunal, being a penal provision, Section 15A can have only prospective operation. But the finding of the Tribunal that by necessary implication, it can be inferred that the obtaining of certificate by an SC member as an ST member and vice versa became illegal only with effect from 01.02.2007 cannot be sustained. A penal provision cannot be viewed in isolation. Penalty is imposed for commission of an act which is prohibited under the statute. The prohibition against an Scheduled Caste member obtaining certificate as an Scheduled Tribe member was available in the Act all along. It is only the violation that was made punishable later, with the introduction of Section 15A.
14. In this regard, it may also be pertinent to note that Articles 341 and 342 of the Constitution of India provide for separate notifications, specifying the Scheduled Castes and Scheduled Tribes in relation to the State and the Union O.P.(KAT) Nos.3215/2013 & 223/2014 22 Territories. The considerations, anthropological, social, cultural, economic etc with respect to the declaration of a particular community as Scheduled Caste or Scheduled Tribe are entirely different. Viewed in that manner, Section 11 of Act 11 of 1996 can be understood to be a prohibition not only against a person other than those belonging to the SC or ST from obtaining a false community certificate, but also as one prohibiting a member of the SC community from obtaining a false certificate as a member of the ST community and vice versa. In this regard, Section 29 of the Act is also relevant. As per Section 29, cancellation of a community certificate issued to any person by any competent authority shall be proof against the Scheduled Caste or Scheduled Tribe claims, as the case may be, of the consanguineous relations of that individual and shall be a ground for taking action against the members of such family by the Scrutiny Committee or the Government, by O.P.(KAT) Nos.3215/2013 & 223/2014 23 virtue of Sub-sections (1) and (2) of Section 11. Therefore, turning a Nelson's eye towards the act of a person belonging to the SC community, obtaining false certificate as the member of an ST community, would result in perpetuating the illegality even in the case of his/her posterity. A similar view was expressed by a Division Bench of this Court in Managing Director, SBT v. K.G.Viswanathan and others [ILR 2016 (3) Ker. 528], with which we are in respectful agreement. It would be apposite to mention that the Division Bench had expressed its view in Viswanathan, after specifically referring to the observations in Ext.P7 judgment.
15. The next question is with regard to the legality of the findings of the Tribunal about the applicant not having perpetuated any fraud for the purpose of obtaining the caste certificate. This question is no longer as res integra in the light of the decision of the Apex Court in Chairman and O.P.(KAT) Nos.3215/2013 & 223/2014 24 Managing Director, FCI v. Jagdish Balaram Bahira [(2017) 8 SCC 670]. The provision under consideration in CMD, FCI was Section 7 of the Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes, (Vimukta Jatis) Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of issuance and verification of) Caste Certificate Act, 2000 ('Maharashtra Act 23 of 2001' for short) which is in pari materia with Section 11 of Act 11 of 1996. The Apex Court conducted a detailed survey of precedents and on a purposive interpretation of the provisions of the Act under consideration, expressed its conclusive opinion in the following words:-
"52. .........If the provisions of Maharashtra Act 23 of 2001 were to be considered by the Bench of two Judges, it would be apparent that under the provisions of Section 7 the Scrutiny Committee is empowered to verify a caste certificate whether issued before or after the commencement of the Act and if it comes to the conclusion that the caste certificate is false and is obtained fraudulently it is empowered to order its cancellation and confiscation. Section 10 provides for the withdrawal of benefits secured when a caste certificate is concerned for its falsity. Falsity is adjudicated upon when an order of O.P.(KAT) Nos.3215/2013 & 223/2014 25 cancellation is passed under Section 7. Once a caste certificate is cancelled by the Scrutiny Committee under Section 7, the individual affected by the order has a remedy to challenge its cancellation before the High Court under Article 226. If the challenge fails or if the challenge is given up, and the only relief sought is of the protection of service, or of the admission to the course, the grant of such protective relief simpliciter would be impermissible. The withdrawal of the benefit under Section 10 follows an order of cancellation under Section 7. Once the conditions for cancellation are fulfilled and an order of cancellation is passed under Section 7, withdrawal of all benefits which have accrued on the basis of the claim (which stands invalidated) cannot be opposed on a theory that there was an absence of dishonest intent."
Therefore, the question as to whether the person who had obtained the false certificate had a dishonest intent is of no relevance any longer, since the fact that such a certificate was obtained presupposes the commission of fraud. This Court had occasion to consider the impact of the decision in CMD, FCI, while rendering the judgment in Regional Director, RBI v. A.H.Thankappan and others [W.A.No.1164 of 2019].
16. The remaining question is as to whether Ext.P15 order could be rendered nugatory for violation of the principles of natural justice and fair play. To answer this O.P.(KAT) Nos.3215/2013 & 223/2014 26 question, the findings and the directions contained in Ext.P7 judgment ought to be analysed. In Ext.P7, it is specifically found by the learned Single Judge that even though the enquiry report was submitted by the Vigilance Officer after an inquisitorial procedure, everything was done behind the applicant's back. Further, even assuming that the Vigilance Officer is entitled to gather any information from any source, the Scrutiny Committee can act on the same only after affording a reasonable opportunity to rebut the conclusions in the enquiry report and for that, the Scrutiny Committee was bound to follow the adversarial procedure. After referring to the decision of the Honourable Supreme Court in Kumari Madhuri Patil v. Additional Commissioner [(1994) 6 SCC 241] and quoting the authorities on administrative law, the learned Single Judge had held the enquiry report to have been prepared in gross violation of the principle of audi alteram O.P.(KAT) Nos.3215/2013 & 223/2014 27 partem. The learned Single Judge also found fault with the Scrutiny Committee, for not providing an opportunity to the applicant to examine the witnesses, whose statements had been relied on by the enquiry officer. It was therefore held that the Scrutiny Committee had failed to follow a fair procedure in accordance with the principles of natural justice. Based on the said findings, the proceedings dated 07.03.1998 of the Scrutiny Committee, by which the applicant's caste certificate was sought to be cancelled, was quashed and it was declared that the findings in the enquiry report will not bind the applicant. Having held so, it was clarified that the findings in the judgment will not stand in the way of the Government from using the materials contained in the enquiry report in accordance with law to launch any fresh action against the applicant, if the same is permissible under Act 11 of 1996.
17. The order of the Scrutiny Committee having been O.P.(KAT) Nos.3215/2013 & 223/2014 28 quashed, there was nothing before the Government, other than the enquiry report, to initiate fresh proceedings against the applicant. As per Section 8 of the Act, the Government shall constitute a Scrutiny Committee for verification of community certificates. Section 11(1) empowers the Scrutiny Committee to call for the records and enquire into the correctness of a community certificate, either suo motu or on a written complaint or on the report by any person or authority and if the Committee is of the opinion that the certificate was obtained fraudulently, to issue an order cancelling the certificate after giving the person concerned an opportunity to make a representation. Under Section 11(2), the power of the Scrutiny Committee, as referred to in sub-section (1) of Section 11, can be exercised by the Government also. If the Government can exercise the powers of the Scrutiny Committee as prescribed under Section 11 (1), is naturally O.P.(KAT) Nos.3215/2013 & 223/2014 29 follows that while exercising such power the person concerned shall be afforded with an opportunity of making a representation, as mandated in Section 11(1). As per Section 14, the powers of the Civil Court trying a suit under the Code of Civil Procedure, 1908, with respect to enumerated matters has been conferred on the competent authority, the expert agency and the scrutiny committee. The powers enumerated under Section 14 includes the power to require the discovery and production of any document, to receive evidence on an affidavit and to issue commissions for the examination of witnesses or documents. The Government, while exercising the powers of the Scrutiny Committee, should be deemed to have been clothed with the same powers, lest it would amount to denial of opportunity to certain persons, merely for the reason that in a particular case, the Government assumed the role of the Scrutiny Committee and proceeded to cancel his O.P.(KAT) Nos.3215/2013 & 223/2014 30 community certificate. In this context, the decision in Kumari Madhuri Patil, which is the very basis for the enactment of Act 11 of 1996, assumes relevance. It is in Kumari Madhuri Patil that, the Supreme Court streamlined the procedure for issuance of social status certificate, their scrutiny and approval. The procedure is set out at paragraph 13 of the judgment, of which sub-paragraph 6 reads as under:-
"6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or 'doubtful' or spurious or falsely or wrongly claimed, the Director concerned should issue show- cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity O.P.(KAT) Nos.3215/2013 & 223/2014 31 either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis- à-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof."
The opportunity of making a representation contained in Section 11(1) is held to be not confined to mere submission of representation, but to include the opportunity to adduce evidence as well as the opportunity to cross-examine the persons, whose statements were relied upon in the enquiry report and which were considered by the Scrutiny Committee/Government, while deciding the issue regarding the caste status of the person concerned.
18. Even otherwise, it is trite that unless the statutory provision, either specifically or by necessary implication, exclude the application of the principles of natural justice, the requirement has to be read into the provisions of the statute, particularly when the order has adverse civil consequences. Dilating on the issue, the Apex Court in Uma Nath Pandey O.P.(KAT) Nos.3215/2013 & 223/2014 32 and others v. State of UP and another [AIR 2009 SC 2375] lucidly expressed the need for adherence to the principles of natural justice, in the following words:-
"8. The learned Counsel for the appellant reiterated the contention that non-adherence to the principles of natural justice had vitiated the entire proceedings and imposition of penalty. The learned Standing Counsel for the Corporation would submit that the Service Rules of the Corporation envisage only that a reasonable opportunity should be provided to the delinquent employee before imposition of penalty. It is contended that the requirement was complied with, the appellant having been afforded an opportunity of personal hearing. In support of this contention, reference is made to Rule 69(ii) of the Service Rules, which reads as under:
"69. Penalties.
(i).....
(ii) No employee shall be subject to the penalties in clause
(b) to (f) of sub rule (1) of these rules except by an order in writing signed by the Managing Director and no such order shall be passed without the charges being formulated in writing and given to the said employee so that he shall have reasonable opportunity to answer them in writing or in person as he prefers, and in the latter case his defence may be taken down in writing and read to him.
Provided that the requirements of this sub rule may be waived if the facts on the basis of which action is to be taken have been established in a Court of Law or where the employee has absconded or where it is for any other reason impracticable to communicate with him or where there is difficulty in observing them and the requirements can be waived without injustice to the employee. In every case where all or any of the requirements of this sub rule are waived, the reasons for so doing shall be recorded in writing.
Provided further that the final orders under item (f) of sub rule (i) shall be passed only by the appointing authority." O.P.(KAT) Nos.3215/2013 & 223/2014 33 According to the Honourable Supreme Court, natural justice being another name for common sense justice, the principles of which are ingrained in the conscience of man, has to be freed from the narrow restricted considerations which are usually associated with formulated law involving linguistic technicalities and grammatical niceties. Understood in that perspective, irrespective of whether the opportunity of hearing is provided in a statute or not, the principles of natural justice demand that such opportunity be read into the statute.
19. It is the specific case of the applicant that no opportunity of personal hearing, let alone the opportunity to examine witnesses was provided to him. As a matter of fact, on 03.08.2011, the day on which the applicant was asked to appear in person, he had requested for an adjournment on the ground that he had to take his daughter for an unavoidable O.P.(KAT) Nos.3215/2013 & 223/2014 34 medical consultation. In such circumstances, the Government should have adjourned the matter for affording an opportunity to the applicant to make an effective representation, rather than proceeding to pass the order on that day itself. The manner in which Ext.P15 order was passed compel us to hold that the order was issued in complete violation of the principles of natural justice, for which reason alone, the order is liable to be quashed and we do so.
20. The next question is as to whether the Government should be directed to reconsider the matter, by providing an effective opportunity of hearing to the applicant. While deciding the question, we have to take note of the fact that the proceedings against the applicant, which ultimately culminated in Ext.P15 order, had commenced in the year 1995 and during the course of several rounds of litigation, the O.P.(KAT) Nos.3215/2013 & 223/2014 35 applicant has retired from service in the year 2017. Yet another relevant factor which weighed with us is that, even going by the findings of the enquiry officer, which is the basis for Ext.P15 order, at least from the time of the applicant's grandfather, his family had been living as members of a Scheduled Tribe community, suffering all the ignominies and disadvantages attached to such life.
21. Under the above circumstances, we deem it appropriate to give a quietus to the issue and not to remit the matter to the Government for fresh consideration. Ext.P15 having been quashed, there is no reason for withholding the retirement benefits of the applicant. The competent among the respondents are therefore directed to disburse the retirement benefits due to the applicant within a period of two months from the date of receipt of a copy of this judgment.
O.P.(KAT) 223 of 2014 is dismissed with the above O.P.(KAT) Nos.3215/2013 & 223/2014 36 direction. O.P.(KAT) No.3215 of 2013 filed by private persons in an attempt to sustain Ext.P15 order, is found to be without merit and hence dismissed. The question of whether the applicant's progeny shall be entitled to Scheduled Tribe status is left open and this judgment does not confer it on them. We have set aside the proceedings only for the reasoning above, which does not confer the Scheduled Tribe status on the applicant. The parties to suffer their respective cost.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
V.G.ARUN JUDGE Scl/27.01 O.P.(KAT) Nos.3215/2013 & 223/2014 37 APPENDIX OF OP(KAT) 3215/2013 PETITIONER'S/S EXHIBITS:
ANNEXURE A1 TRUE PHOTOCOPY OF THE WRIT PETITION NO.26067/2011 WITH ALL THE EXHIBITS (TA NO.7592/2012).
ANNEXURE A2 TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT DATED 11/10/2011 FILED BY THE 3RD RESPONDENT HEREIN AS 2ND RESPONDENT IN WPC NO.26067/2011.
ANNEXURE A3 TRUE PHOTOCOPY OF THE IA NO.16435/2011 FILED IN WPC NO.26067/2011.
ANNEXURE A4 TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT DATED 13/02/2013 FILED BY THEM IN THE T.A. ANNEXURE A5 TRUE PHOTOCOPY OF THE REPLY AFFIDAVIT DATED 15/02/2013 FILED BY THE IST RESPONDENT IN THAT T.A. ANNEXURE A6 TRUE PHOTOCOPY OF THE ORDER DATED 145/06/2013 IN TA NO.7592/2012 PASSED BY THE KERALA ADMINISTRATIVE TRIBUNAL.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1 NIL
EXHIBIT R1 A TRUE COPY OF JUDGMENT OF THIS HON'BLE
COURT IN WPC NO.19180/2008 DATED
25.06.2008.
EXHIBIT R1 B TRUE COPY OF JUDGMENT OF THIS HON'BLE
COURT IN WPC NO.26958/2008 DATED
11.06.2009.
O.P.(KAT) Nos.3215/2013 & 223/2014
38
APPENDIX OF OP(KAT) 223/2014
PETITIONER'S/S EXHIBITS:
ANNEXURE 1 TRUE COPY OF THE ORDER IN TA NO.7592/12
ANNEXURE 2 TRUE COPY OF THE TRANSFER APPLICATIONS
NO.7592/2012 WITH EXHIBITS
EXHIBIT P1 TRUE COPY OF THE NOTIFICATION NO.
SRII(4/2127/83/SW1 DATED 30.08.83
PUBLISHED IN THE KERALA GAZETTE DATED
10.04.1984.
EXHIBIT P2 TRUE COPY OF THE CERTIFICATE ISSUED BY
THE TRIBAL DEVELOPMENT OFFICER,
PUNALUR.
EXHIBIT P3 TRUE COPY OF THE ORDER GO(MS)
NO.153/85/GAD DATED 29.04.1985
EXHIBIT P4 TRUE COPY OF THE CERTIFICATE NO. C2-
1730/84 DATED 11.04.1984 ISSUED BY THE
TAHSILDAR, RANNI.
EXHIBIT P5 TRUE COPY OF THE ORDER GO(MS)
NO.37/81/DD DATED 03.04.1981 PUBLISHED IN KERALA GAZETTE.
EXHIBIT P6 TRUE COPY OF THE ACT II OF 1996.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT OF THIS
HONOURABLE COURT DATED 27.05.2002 IN OP
NO.11925/1998.
EXHIBIT P8 TRUE COPY OF THE JUDGMENT OF THIS
HONOURABLE COURT DATED 11.06.2009 IN
WP(C) NO.22102/2008.
EXHIBIT P9 TRUE COPY OF THE NOTICE
NO.11689/G3/1998/SCSTDD DATED
30.04.2011.
O.P.(KAT) Nos.3215/2013 & 223/2014
39
EXHIBIT P10 TRUE COPY OF REPLY FILED BY THE
PETITIONER BEFORE THE GOVERNMENT DATED
11.05.2011.
EXHIBIT P11 TRUE COPY OF THE LETTER FROM THE
PETITIONER TO THE GOVERNMENT DATED
31.05.2011.
EXHIBIT P12 TRUE COPY OF THE LETTER
NO.1189/GE/1998/STSTDD DATED
16.06.2011.
EXHIBIT P13 TRUE COPY OF THE REPLY FILED BY THE
PETITIONER BEFORE PRINCIPAL SECRETARY
TO GOVERNMENT DATED 22.06.2011.
EXHIBIT P14 TRUE COPY OF THE LETTER FROM THE
PETITIONER TO THE PRINCIPAL SECRETARY
TO GOVERNMENT DATE 03.08.2011.
EXHIBIT P15 TRUE COPY OF THE GO(MS) 95/2011/SCSTDD
DATED 26.09.2011.
ANNEXURE 3 TRUE COPY OF THE COUNTER AFFIDAVIT OF
THE 2ND RESPONDENT WITH ALL DOCUMENTS.
EXHIBIT R2(A) TRUE COPY OF THE ANTHROPOLOGICAL
INVESTIGATION CONDUCTED ON THE CASE
STATUS OF THE PETITIONER.
EXHIBIT R2(B) TRUE COPY OF THE EXTRACT OF THE SCHOOL
REGISTER,
EXHIBITS R2(C), (D) TRUE COPY OF THE NOTICES OF HEARING AND (E) SERVED ON THE PETITIONER.
EXHIBIT R2(F) TRUE COPY OF THE INTERIM ORDER DATED 27.05.2011 IN WP(C) NO.4978/2011.
ANNEXURE 4 TRUE COPY OF THE REPLY TO COUNTER AFFIDAVIT.
ANNEXURE 5 TRUE COPY OF THE IMPLEADING PETITION FILED NATIONAL ADIVASI FEDERATION.
O.P.(KAT) Nos.3215/2013 & 223/2014 40 ANNEXURE 6 TRUE COPY OF THE COUNTER AFFIDAVIT OF THE NATIONAL ADIVASI FEDERATION.
EXHIBIT R3(A) TRUE COPY OF THE GOVT.LETTER NO.1189/G3/98/SCSTDD DATED 24.01.2003.
ANNEXURE 7 TRUE COPY OF THE IMPLEADING PETITION FILED BY MR.PRADEEPKUMAR AND 4 OTHERS IN PETITION NO.16635/2011.
ANNEXURE 8 TRUE COPY OF THE R.P. NO.522/2012.
ANNEXURE 9 TRUE COPY OF THE ORDER IN R.P.
NO.552/2012.
ANNEXURE 10 TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY MR.PRADEEPKUMAR AND 4 OTHERS
EXHIBIT R3(A) TRUE COPY OF THE REPORT OF THE
VIGILANCE OFFICER, KIRTADS NO.D-664/89 DATED 11.09.1996.
EXHIBIT R3(B) TRUE COPY OF THE PROCEEDINGS NO.19024/G3/06/ST4/SCSTDD DATED 07.03.1998 OF THE IIND RESPONDENTS.
EXHIBIT R3(C) TRUE COPY OF THE GO(MS) NO.59/98/SCSTDD DATED 22.06.1998.
EXHIBIT R3(D) TRUE PHOTOCOPY OF THE AMENDED ACT 32/2008 AMENDING ACT-II OF 1996.
ANNEXURE 11 TRUE COPY OF THE REPLY AFFIDAVIT FILED BY THE 1ST RESPONDENT DATED 15.02.2013 IN THE KERALA ADMINISTRATIVE TRIBUNAL.
ANNEXURE A1 TRUE COPY OF GOVT.LETTER
NO.8127/ADMN/A11/08/FIN DATED
18.07.2008.
ANNEXURE A1(A) TRUE ENGLISH TRANSLATION OF ANNEXURE
A1.
O.P.(KAT) Nos.3215/2013 & 223/2014
41
ANNEXURE A2 COMPUTER PRINTOUT OF JUDGMENT IN WP(C)
9632/2008
ANNEXURE 12 TRUE COPY OF THE EXTRACT OF SCHOOL
REGISTER
ANNEXURE 13 TRUE COPY OF THE GO(MS) NO.95/11/SCSTDD
DATED 26.09.2011.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1 (A) TRUE COPY OF NOTIFICATION NO.
SRII(4)2127/83/SW1 DATED 30.8.83
PUBLISHED IN THE KERALA GAZETTE DATED
10.04.84.
EXHIBIT R1(B) TRUE COPY OF ORDER GO(MS) NO.153/85/GAD
DATED 29.04.1985 WITH TYPED COPY.
EXHIBIT R1(C) TRUE COPY OF GO(P) NO.16/95/SCSTDD,
DATED 8.5.1995.