Prakash vs State Of Kerala on 27 May, 2002

[Cites 9, Cited by 0]

Kerala High Court

Prakash vs State Of Kerala on 27 May, 2002

1. The petitioner who got employment under the Government as a member of the Scheduled Tribe is now told by the competent authority by Ext. P50 order that he is not a member of the Scheduled Tribe and therefore he should quit the post and refund the salary received by him. Aggrieved by the same, the petitioner has filed this Original Petition. The brief facts necessary for the disposal of the case are the following.

2. The Public Service Commission by Ext. P1 notification dated 30.8.1983 invited applications for appointment to the post of Under Secretary in the Finance Department in the Government Secretariat. It was a special recruitment for the members of the Scheduled Caste/Scheduled Tribe. The petitioner was duly qualified for appointment to the post and he applied for the post as a member of the Scheduled Tribe. He was selected and advised by the Public Service Commission as per Ext. P2 advice memo dated 29.3.1985 and the Government as per Ext. P3 order dated 29.4.1985 appointed him as Under Secretary in the Finance Department. Ext. P22 dated 11.4.1984 is the caste certificate issued by the Tahsildar, Ranni, certifying that the petitioner belongs to Hindu Uraly which is a Scheduled Tribe. At the relevant time the Tahsildar was one of the competent authorities authorised to issue community certificates. The petitioner completed his probation in the post of Under Secretary and in due course he has been further promoted, and from 1993 he is working as Additional Secretary in the Finance Department.

3. While so, in the year 1995, the petitioner was served with Ext. P4 notice dated 30.10.1995 by the Vigilance Officer of the KIRTADS, calling upon him to attend an enquiry on 15.11.1995. The enquiry related to the caste status of the petitioner. After one or two adjournments, the petitioner appeared for the enquiry held on 5.1.1996. He gave the information sought from him and also filled up and submitted Ext. P5 questionnaire. Later, the petitioner was served with Ext. P6 notice dated 31.1.1997 issued by the Chairman of the Scrutiny Committee for verification of SC/ST claims, constituted under Ext. P51 Government Order dated 8.5.1995. The allegation in Ext. P6 was that the petitioner has made false claim that he is a member of Uraly (Scheduled Tribe) community. The proposed action in the notice was to cancel the Scheduled Tribe certificate wrongfully secured, by the petitioner and to take consequential action. Along with Ext. P6 notice Ext. P7 report of the Vigilance Officer of the KIRTADS dated 11.9.1996 was also served on the petitioner.

4. The petitioner submitted Ext. P8 reply to the show-cause notice. He also submitted documents to substantiate his claim that he is a member of the Uraly (Scheduled Tribe) community. Thereafter, the Scrutiny Committee heard the petitioner. At the time of hearing he submitted Ext. P15 explanation and further documents to substantiate his claim. The petitioner was given the hearing on 14.10.1997. He appeared along with his counsel and explained his contentions. It was emphasised that Ext. P7 was prepared on the basis of hearsay and the same should not be relied upon without giving him a chance to challenge the statements of the persons relied on by the Vigilance Officer in Ext. P7.

5. Overruling the objections of the petitioner, the 2nd respondent-Chairman of the Scrutiny Committee passed Ext. P50 order dated 7.3.1998, rejecting the Scheduled Tribe claim of the petitioner and declaring that he is a member of Kuravan (Scheduled Caste) community. The report was submitted before the Government for further follow-up action. The petitioner challenges Exts. P7 and P50 on various grounds.

6. A detailed counter-affidavit has been filed on behalf of the 2nd respondent, supporting the impugned orders. I heard both, sides. The learned counsel for the petitioner relied on the decisions of the Apex Court in Gayatrilaxmi Bapurao Nagpore v. State of Maharashtra (AIR 1996 SC 1338) and Gulzar Singh v. Sub Divisional Magistrate (1999 (3) SCC 107) and of the Bombay High Court in Arpitslo Prakash Nimie v. The Scheduled Tribe Caste Certificate Scrutiny Committee, Nagpur (AIR 2001 Bombay 59). The Learned Government Pleader relied on the decisions of the Supreme Court in Kumari Madhuri Patil v. Addl. Commr., Tribal Development (1994 (6) SCC 241), Director of Tribal Welfare, Govt. of A.P. v. Laveti Gin and Anr. (1995 (4) SCC 32) and State of T.N. v. A. Guruswamy (1997 (3) SCC 542). I also heard the counsel for the additional 5th respondent. The said respondent was an applicant for the post of Under Secretary notified as per Ext. P1. He is a member of the Scheduled Tribe community.

7. The learned counsel for the petitioner challenged the very jurisdiction of the Scrutiny Committee to go into the caste status of the petitioner. The proceedings against the petitioner admittedly have been initiated under Ext. P51 G.O. dated 8.5.1995. That is manifest from the recitals in Ext. P6 dated 31.1.1997. The Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, "1996 (Act 11 of 1996) was enforced in the State of Kerala with effect from 1.12.1996. The said Act was issued in the place of Ext. P51 G.O. which governed the very same subject-matter till the enforcement of Act 11 of 1996. Since the matters dealt with by Ext. P51 order and Ext. P52 Act were the same, after the enforcement of the Act, the provisions of the executive order no longer survive. Therefore, the issuance of Ext. P6 purportedly under Ext. P51 is without jurisdiction. Apart from that, Section 30 of the Act saves Ext. P22 caste certificate issued in favour of the petitioner by the Tahsildar and other similar certificates issued by the competent authorities. Section30 reads as follows:-

"30. Transitional Provision:- A community certificate issued by any authority competent to issue the same under the relevant rules or orders before the commencement of this Act, shall unless it is cancelled under the provisions of this Act, be valid and shall be deemed to have been issued under the provisions of this Act."

In view of this provision, after 1.12.1996 the caste certificate Ext. P22 certifying that the petitioner is a member of the Scheduled Tribe is valid and binding on ail including the Government. It can be cancelled only under the provisions of the Act. So, Ext. P6 issued admittedly under Ext. P51 after the enforcement of Ext. P52 is plainly without jurisdiction. It is ultra vires and unauthorised. It is declared so.

8. The petitioner has a case that Ext. P7 has been prepared in violation of the principles of natural justice and Ext. P50 has been issued relying on the findings in Ext. P7, in violation of the principles of natural justice. A reading of Ext. P7 will show that it has been prepared following the inquisitory procedure. The Vigilance Officer went around and collected information from various sources. He also recorded the statements of a number of persons. Everything was done behind the back of the petitioner. The petitioner was also questioned and his statement and explanation were also recorded. Even assuming the Vigilance Officer is entitled to gather information from any source, the Scrutiny Committee can act upon the same only after affording a reasonable opportunity to the petitioner to rebut the conclusions in Ext. P7. For that the Scrutiny Committee was bound to follow the adversary procedure. The Supreme Court itself envisaged an adversary procedure where evidence is tendered by the claimant and opposing evidence is to be taken in his presence. This will be evident from the directions of the Supreme Court in Kumari Madhuri Patil v. Addl. Commissioner, (1994) 6 SCC 241), basing on which the Government have issued Ext. P51. In the said decision, the Supreme Court stated:-

"6. The Director concerned, on receipt of the report from the Vigilance Officer if he found the claim for special 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 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 either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof."

9. The Apex Court speaks of opportunity to both sides to adduce evidence, either in person or through counsel. In the case at hand, what was done was, the petitioner and his counsel were heard and the petitioner was given an opportunity to produce documents from his side. But overruling his objections to Ext. P7 report, the same was accepted by the Scrutiny Committee. As stated earlier, the conclusions in Ext. P7 were based on discrete enquiries and on statements recorded behind the back of the petitioner. Unless the petitioner is given a chance to challenge the statements of those persons relied on by the Vigilance Officer, the conclusions cannot be pressed into service against the petitioner. The reliance placed by the Scrutiny Committee on the conclusions in Ext. P7, therefore, violates the principles of natural justice.

10. Lord Denning in Kanda v. Government of Malaya (1962 AC 322) stated:-

"If the right to be heard is to be real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him and then he must be given a fair opportunity to correct or contradict them".

De Smith in Judicial Review of Administrative Action (5th Edition) comments on the right to cross-examine in the following words:

"Refusal to permit cross-examination of witnesses may amount to procedural unfairness, especially if a witness has testified orally and a party requests leave to confront and cross-examine him. The fact that the proceedings may be inquisitorial and informal is inconclusive. As with the question of entitlement to legal representation, the matter is one for the discretion of the tribunal. However, where a "judicialised" procedure has been adopted and witnesses are called to give evidence, then the courts will be very ready in the absence of strong reasons to the contrary to find unfairness where a tribunal declines to allow those witnesses to be tested in cross-examination. As Lord Edmund-Davies has pointed out, "there is a massive body of accepted decisions establishing that natural justice requires that a party be given an opportunity of challenging by cross-examination witnesses called by other parties on relevant issues".

Professor H.W.R. Wade in his Administrative Law (Eighth Edition) states:

"Where an oral hearing is given, it has been laid down that a tribunal must (a) consider all relevant evidence which a party wishes to submit; (b) inform every party of all the evidence to be taken into account, whether derived from another party or independently; (c) allow witnesses to be questioned; (d) allow comment on the evidence and argument on the whole case. Failure to allow the last two rights, which include the right of cross-examination, has led to the quashing of punishments awarded by prison visitors in a series of cases".

Professor P.P. Craig in his Administrative Law (Third Edition) comments:

"The overriding obligation is to provide the applicant with a fair hearing and a fair opportunity to controvert the charge. This may in certain cases require not only that the applicant be informed of the evidence, but that the individual should be given a sufficient opportunity to deal with it. This may involve the cross-examination of the witnesses whose evidence is before the hearing authority in the form of hearsay. Where there are insuperable difficulties in arranging for that evidence to be questioned it should not be admitted in evidence, or the hearing authority should exclude it from their consideration".

Mr. Justice Felix Frankfurter in Joint Anti-Fascist Refugee Committee v. McGrath ((1951) 341 US 123 at page 162) has held:

"That a conclusion satisfies one's private conscience does not attest its reliability. The validity and moral authority of a conclusion largely depend on the mode by which it was reached. Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss, notice of the case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular Government, that justice has been done."

Our Supreme Court in Gulzar Singh v. Sub Divisional Magistrate, 1999(3) SCC 107, which is a case concerning the cancellation of a caste certificate held:

"If there were statements of other persons which were recorded, as seem to have been done in the present case, on the basis of which the Department came to the conclusion that the appellant was not a Majhbi Sikh by caste but was a Christian, then fairness would require that the said statements should be put to the appellant before a final decision is taken."

11. Ext. P7 has been admittedly prepared in gross violation of the above stated principles of law. The Scrutiny Committee did not give a fair opportunity to the petitioner to challenge the statements relied on by the Vigilance Officer. But the learned Special Government Pleader, relying on the decision of the Apex Court in State of Tamil Nadu v. A. Gurusamy, (1997) 3 SCC 542, submitted that the enquiry need not be in the form of trial of a suit. While dealing with the decision of the District Collector regarding caste status, the Apex Court said: "The District Collector does not decide it like a suit". But the said observation cannot be pressed into service in the light of the express words of the Supreme Court in "Kumari Madhuri Patil" (1994 (6) SCC 241). The directions therein, as stated earlier, speak of an opportunity to adduce evidence by both sides. It is also directed in the said decision: "The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months," If the enquiry is to be over by a single hearing, as was done in this case, there need not be any direction to hold the enquiry on a day-to-day basis, for a period of two months. Therefore, it cannot be said that the examination of witnesses by the Scrutiny Committee was not contemplated by the Supreme Court while issuing the directions in the abovesaid case. Therefore, the contention of the learned Special Government Pleader in this regard cannot be accepted. Therefore, I find that the Scrutiny Committee did not follow a fair procedure in accordance with the principles of natural justice. For this reason also Ext. P50 is vitiated.

12. The petitioner has a case that the assessment of the impact of various documents made by the Scrutiny Committee was one-sided. It is emphasised that the Committee has failed to take into account various valid documents produced by him, or they were rejected on irrelevant grounds. Several other grounds taken in the Original Petition were also urged against the impugned orders. But I am not going into those grounds, in view of my finding that the impugned orders have been issued without jurisdiction and in violation of the principles of natural justice.

13. Another aspect to be considered in this case is whether any action could be initiated against the petitioner to cancel his appointment at this distance of time. The advice of a candidate can be cancelled by the Public Service Commission within one year of the date of advice, in the light of Rule 3(c) of Part II of the Kerala State and Subordinate Services Rules. There may be cases where a candidate may be advised out of turn by mistake while applying the communal rotation. Such wrong advices can be cancelled or corrected only within one year from the date of advice. In the case at hand, the case of the respondents is that the petitioner is a member of the Scheduled Caste. So he has been wrongly advised in the turn of Scheduled Tribe. But normally an advice, even if it is found to be wrong, cannot be modified or withdrawn after the lapse of one year, on the strength of any executive order. But in view of Ext. P52 Act, the Government have got ample powers to take appropriate action to cancel the appointment, provided the jurisdictional preconditions stated therein are present. Section 11 of Act 11 of 1996 is the enabling provision by virtue of which the Government can cancel any caste certificate. Section 11(1) reads 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 after giving the person concerned an opportunity of making a representation, if any."

The jurisdictional pre-condition for taking action under Section 11(1) is that a person not belonging to any of the Scheduled Castes or Scheduled Tribes has obtained a false community certificate fraudulently. So, the action is contemplated not against the members of the Scheduled Caste or Scheduled Tribe but against strangers who claim fraudulently that they belong to the Scheduled Caste or the Scheduled Tribe. In the case at hand, even according to the respondents, the petitioner is a member of the Scheduled Caste. It appears that the provisions of the Act are not meant for dealing with the case of a member of the Scheduled Caste claiming S.T. status or vice-versa (See the provisions employing similar words in Section 3 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. The atrocities committed by third parties on the members of the SC/ST alone are covered by this Act. In other words, a member of the SC/ST cannot be accused of an offence under this Act).

14. Further, no-one has a case that the petitioner has acted fraudulently. The worst allegation against him in Ext. P7 is that he has made a false claim. The dictionary meaning of "false" is, wrong, incorrect, not genuine, artificial, sham, pretended etc. But the dictionary meaning of "fraud" is, deceiving somebody illegally in order to make money or obtain goods, and that of "fraudulent" is, deceitful or dishonest. "Fraudulent" is the adjective and "fraudulently" is the adverb. 'Deceit' involves deliberate misleading.

15. In the case at hand, the petitioner has been admitted in Standard I by his parents in Kattachira Tribal School with his caste as Malay Uraly. The petitioners' parents were residing in the Tribal colony. Both of them underwent training in a Craft Training Centre for Tribals and they were admitted in the Centre as persons belonging to Uraly (Scheduled Tribe) community. This will be evident from Ext. P9. So, the petitioners' parents even at their young age were claiming that they belong to Uraly (Scheduled Tribe) community. The petitioner was admitted by them in the school when he was a minor aged about 5 years. According to the official respondents, the petitioner's grandfather was a headman of Kuravas, locally known as 'Uraly' and he started making the alleged false claim of being a member of the Uraly Scheduled Tribe. It is also alleged that he used his residence in the tribal settlement as a ground for putting forward his claim. The alleged sin dates back to the days of petitioner's grandfather. So, admittedly, the petitioner's claim was not something invented by him. The religion or caste of a child is what he is told by his parents. He has no free choice in that. Since his school records including the SSLC book showed that he is Malay Uraly, he applied for the post of Under Secretary as one belonging to the Scheduled Tribe. Since Malay Uraly was treated as Uraly, the competent authority (the Tahsildar) issued Ext. P22 certificate. A person like the petitioner who applies for a post in the public service cannot go to the KIRTADS and request them to make a genealogical study and tell him the correctness of his caste claim and thereafter submit an application for employment relying on such a certificate. The petitioner has done what any other candidate would do, ie., he relied on the caste status mentioned in the school records and in the certificate issued by the competent authority. So, he cannot be accused of having done anything "fraudulently". Ext. P52 Act, it appears, is not meant to deal with every mistaken claim of caste, especially made by a member of the SC/ST.

16. Anyway, I am not finally pronouncing on the jurisdiction of the Scrutiny Committee or the Government to take action under Act 11 of 1996 because so far as the concerned authorities have not initiated any proceedings under the said Act. The petitioner has prayed for a declaration that respondents 2 to 4 have no authority or jurisdiction to determine the caste status of the petitioner under Ext. P52 Act. The contentions of the petitioner in this regard are kept open and he may urge them, in case the Government or any other competent authority proceeds against him under Ext. P52. So it is not necessary to finally decide whether the provisions of the Act are attracted in the case of the petitioner.

17. The Original Petition is allowed quashing Ext. P50. It is declared that the findings in Ext. P7 will not bind the petitioner. But, this will not stand in the way of the Government using the materials contained in Ext. P7 in accordance with law to launch any fresh action against the petitioner, if the same is legally permissible under Ext. P52. The Government are restrained from taking any action against the petitioner based on Ext. P50 or Ext. P51.

O.P. No. 16129 of 1999

18. This Original Petition is filed seeking to implement Ext. P1 order which is Ext. P50 in O.P. No. 11925 of 1998. Since I have already quashed that order, this prayer is liable to be rejected and I do so. The other reliefs sought in the Original Petition are highly stale and belated. Even otherwise, since Ext. P1 is quashed, the petitioner is not entitled to any of the reliefs prayed for in the Original Petition and it is accordingly dismissed.

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