Gujarat High Court
Ranjanben Madanlal Chauhan vs Bank Of Baroda Through Authorised ... on 2 September, 2022
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4488 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RANJANBEN MADANLAL CHAUHAN
Versus
BANK OF BARODA THROUGH AUTHORISED PERSON GENERAL
MANAGER (ZH)
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Appearance:
KRUSHITA D DAVE(7857) for the Petitioner(s) No. 1
MR SHALIN MEHTA SENIOR ADVOCATE FOR MR.DARSHAN A.
DAVE(7921) for the Petitioner(s) No. 1
for the Respondent(s) No. 3
MR DARSHAN M PARIKH(572) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 02/09/2022
CAV JUDGMENT
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1. Heard learned Senior Advocate Mr. Shalin Mehta assisted by learned advocate Mr. Darshan Dave for the petitioner and learned advocate Mr. Darshan Parikh for respondent nos. 1 and 2.
2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for setting aside communication/notice dated 25.09.2017 and charge-sheet dated 9.02.2021 and further prayed to declare that the initiation of the proceedings as well as all the subsequent actions taken by the respondent Bank pursuant thereto are illegal and deserves to be quashed and set aside and to give all consequential dues/benefits of promotion to the petitioner in accordance with law.
3. Brief facts leading to this petition are as under :
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C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 3.1) The petitioner is possessing degree of B.Sc.(Physics) and MBA (HRM).
3.2) Respondent - Bank of Baroda published an advertisement for the post of Probationary Officer in JMG/S-I for "Recruitment of Probationary Officers -
Project 2007" by displaying such advertisement on the website of respondent- bank and published the same in Employment News/ Rojgar Samachar dated 3.02.2007. 3.3) The petitioner being interested preferred on-line application on 8.03.2007 pursuant to the aforesaid advertisement. The petitioner applied under "SC" (Scheduled Caste) category and paid fees of Rs. 50/- by Demand Draft which was applicable for "SC" category. The petitioner also made a declaration to the effect that true, complete and correct information to the best of her Page 3 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 knowledge and belief is provided and her candidature/appointment would be liable to be cancelled/terminated at any stage and if appointed, her services would be liable to be terminated. The petitioner along with letter dated 30.07.2007 also submitted two Schedule Caste Certificates, one issued in the year 1994 showing her of "Mochi" community as per her birth and another showing "Jenngar" community issued at Rajsthan after marriage. 3.4) After detailed scrutiny, the petitioner was declared as eligible on 12.10.2007 in the results declared on the website of the respondent bank. 3.5) The petitioner was thereafter appointed as a Probationary Officer by appointment order dated 15.10.2007 in service of the respondent bank and after completion of formalities like verification of Page 4 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 certificate/documents etc., the petitioner joined the induction training at the training centre of respondent bank at Gandhinagar on 19.11.2007. The petitioner, thereafter, on completion of induction training period at Gandhinagar was posted at Mehsana Regional Officer as per order dated 12.12.2007 issued by the respondent bank.
3.6) It is the case of the petitioner that as per the record, the petitioner belonged to "Mochi Community" which is "SC" category at the relevant time of her birth.
"Mochi Community" was thereafter delisted from "SC" and listed under OBC (Other Backward Class) category from 2003. According to the petitioner, she was not aware about such delisting because she was residing at Rajasthan with her husband who happens to belong to "Jeengar Community" which falls under "SC" category at Rajasthan. The Page 5 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 petitioner produced two Caste Certificates, one of her being to "Mochi Community" as "SC"
category dated 7.7.1994 and another certificate showing her as belonging to "SC"
"Jeengar Community" which was caste of her husband.
3.7) It is the case of the petitioner that on 30.05.2008 Deputy Regional Manager, Mehsana Region, Bank of Baroda, had issued letter to all respective Senior Branch Managers to verify Caste Certificates of SC/ST candidates who belonged to "Mochi Community" in view of Government Notification of 2002 as "Hindu Mochi Community" was delisted from "SC" and listed under OBC category in Gujarat State. Pursuant to the said communication, Palanpur Main branch verified Caste Certificate of the petitioner and confirmed the same by communication dated 12.06.2008 to the effect that the petitioner Page 6 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 who was serving at Palanpur branch belonged to the "Mochi Community" and no benefits available to SC/ST candidates would be extended to her in future. It was also reported that before marriage, the petitioner belonged to "Mochi community" and after marriage she belonged to "Jeengar - SC Community".
3.8) The petitioner after remaining under probation for a period of two years, was confirmed by respondent bank as a permanent employee as per letter dated 9.12.2009. Thereafter, the petitioner was promoted to Scale-II on 2.5.2012 and to Scale-III on 8.07.2015 considering her satisfactory performance.
3.9) The respondent bank thereafter, called upon the petitioner to submit her fresh Caste Certificate by letter dated 25.09.2017 for the purpose of verification of Page 7 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 the Caste Certificates of the petitioner as both the certificates according to the respondent bank were not only contradictory but also invalid.
3.10) The petitioner submitted reply dated 24.11.2017 along with documents. The petitioner was thereafter served with Memorandum and Articles of Charge/ Statement of Allegations dated 30.05.2018 signed by the then Zonal Head, Ahmedabad zone and the Disciplinary Authority vide letter dated 4.6.2018.
3.11) The petitioner submitted reply dated 27.06.2018 to the charges levelled against her along with the documentary evidence. However, the disciplinary proceedings were initiated on 18.08.2018 by appointment of one Mr. J.G. Yadav as inquiry officer. From 4.9.2018 to 23.11.2018 the departmental proceedings continued.
Page 8 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 3.12) The petitioner thereafter challenged charge-sheet dated 30.05.2018 along with Memorandum and Articles of Charge/ Statement of Allegations by preferring Special Civil Application No.19134/2018.
3.13) The respondent bank submitted a purshis dated 5.01.2021 in the said petition stating that charge-sheet dated 30.05.2018 would be withdrawn being defective. This Court therefore, by order dated 21.01.2021 disposed of Special Civil Application No.19134/2018 in view of the said purshish reserving liberty of the respondent bank to issue fresh charge sheet and liberty to the petitioner to challenge the same. 3.14) The respondent bank thereafter issued impugned charge-sheet dated 9.02.2021 containing Memorandum and Articles of Charges and Statement of Allegations upon the Page 9 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 petitioner on the ground that the petitioner was appointed on the reserved category of Schedule Caste on the basis of Caste Certificate dated 7.07.1994 wherein her community has been mentioned as "Mochi" which is not recognised as Scheduled Caste in the State of Gujarat with effect from 27.05.2003 and thereby obtaining employment in the respondent bank under reservation quota at the cost of other equally placed candidates. It was therefore, alleged against the petitioner that she misrepresented and suppressed the material facts of her caste from the higher authorities in violation of the Rules of the bank and established procedure contrary to the declaration made in the application for appointment made by the petitioner to the effect that all the statements made therein were true, complete and correct, failing which, service of the petitioner would be liable to be terminated. Page 10 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 3.15) The petitioner has thereafter preferred this petition challenging the Memorandum and Articles of Charges/ Statement of Allegations dated 9.02.2021.
4. Learned Senior Advocate Mr.Shalin Mehta assisted by learned advocate Mr. Darshan Dave for the petitioner submitted that the impugned charge-sheet suffers from delay and laches of more than 13 years since the same is issued after the appointment of the petitioner in the year 2007. It was submitted that the petitioner has applied for reserved category on the basis of Caste Certificates issued to her at the time of her birth in the year 1994 and she has also produced Caste Certificate of "SC" category issued to her after her marriage in "Jeengar Community" at Rajasthan.
Page 11 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 4.1) It was submitted that though the petitioner applied in "SC" category, there is nothing on record that the appointment of the petitioner is made in "SC" category. 4.2) It was submitted that the petitioner after availing necessary details under the Right to Information Act pursuant to the requirement of the respondent bank for fresh Caste Certificate, the petitioner had applied to the Social Welfare Department and District Social Welfare Officer, Palanpur, District Banaskantha had issued the latest Caste Certificate on 9.10.2017 in favour of the petitioner wherein it is stated that caste of the petitioner is "Hindu Mochi" which is classified as Other Backward Class (OBC) and it was further clarified that the petitioner belongs to "Mochi Caste" since her birth and subsequently, she got married in the year 2003 with Mr. Pradeepkumar who was residing Page 12 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 at Sirohi, Rajasthan, caste of the petitioner continued to remain as "SC" as her husband also belonged to "Jeengar community" which falls under "SC" category at Rajsthan. It was submitted that till 2003, "Mochi Community"
was under "SC" category and thereafter, it was included into OBC category. It was therefore, submitted that when the petitioner made an application with the respondent bank in the year 2007, the petitioner was under
bona fide belief that she belonged to "SC"
category since birth and thereafter her status as "SC" category continued on her marriage with the person belonging to "Jeengar community" which is "SC" category. It was submitted that delisting of "Mochi community" from "SC" and listing under the OBC category was not in the knowledge of the petitioner since she had migrated to her in- laws place at Rajasthan and till 2006, she resided at Rajasthan.
Page 13 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 4.3) It was further submitted that respondent hank verified the Caste Certificate of the petitioner in 2008 when she was at Palanpur branch pursuant to the letter dated 30.05.2008 and thereafter at the time of her promotion to Scale-II and Scale- III.
4.4) It was submitted that the first charge-sheet dated 30.05.2018 was replied by the petitioner on 27.06.2018 and explained in detail about the case of the petitioner. 4.5) It was submitted that as per the information received by the petitioner under the RTI Act about the process of verification of Caste Certificate as well as validity of the Caste Certificate, it is explained in the reply filed by the respondent bank under the RTI Act dated 23.10.2018 and as per the said procedure, the respondent bank is required to Page 14 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 send Caste Certificate to the concerned issuing authorities/District Magistrate of the place and HR functioning at Regional Office/Zonal Officer/Head office is responsible for verification of the Caste Certificate. It was therefore, submitted that the respondent bank ought to have verified the caste certificates submitted by the petitioner in the year 2007 and as the petitioner was appointed inspite of both the certificates, it is required to be presumed that the petitioner was appointed in general category in absence of any document available on record of the respondent bank showing appointment of the petitioner in "SC" category.
4.6) Learned Senior Advocate Mr. Mehta thereafter referred to the inquiry proceedings pursuant to the charge-sheet dated 30.5.2018 and submitted that the Page 15 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 petitioner satisfactorily replied to each and every charge levelled against her and thereafter, the petitioner was compelled to challenge the charge-sheet dated 30.05.2018 by preferring Special Civil Application No.19134/2018. It was submitted that as the respondent bank having realised that it is difficult for the bank to succeed, came up with purshish dated 5.1.2021 to withdraw the charge-sheet being defective. It was therefore, submitted that the impugned charge-sheet dated 9.02.2021 is nothing but a repetition of the earlier charge-sheet which was issued after two and half years on the same grounds and on the same premise and therefore, the entire exercise is extraneous and arbitrary.
4.7) It was submitted that Special Civil Application No. 19134/2018 was heard extensively by this Court and the respondent Page 16 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 bank has filed reply with regard to the charges to justify the charge-sheet issued by the respondent bank.
4.8) It was pointed out that the Institute for Banking Personnel Selection (IBPS) was also joined by this Court as respondent no.4 in the said petition to assist in ascertaining details in connection with the preparation of merit list of 300 candidates selected for the post of Probationary Officer - Project 2007. 4.9) It was further pointed out that IBPS has filed an affidavit in the said petition stating that after dispatching the result of the examination and after sharing the data with the concerned bank, such data is preserved only for a period of six months and thereafter the same is deleted or destroyed. It was therefore, submitted that the respondent bank has failed to point out any Page 17 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 defect in the process undertaken for verification of the Caste Certificate submitted by the petitioner in the year 2007 and as such the petitioner was appointed in the general category which is further fortified as no benefit of "SC" category is availed by the petitioner since her appointment.
4.10) It was reiterated that the respondent bank has completely failed to explain the inordinate delay of more than 11 years after confirmation of the services of the petitioner and for more than 13 years after recruitment of the petitioner in services of the bank and as such, the impugned charge-sheet has apparently become per se without jurisdiction, arbitrary by way of extraneous consideration and the same deserves to be quashed and set aside. Page 18 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 4.11) Learned Senior Advocate Mr. Mehta submitted that the respondent bank has not given any explanation for inordinate delay nor it would be possible for the respondent bank to justify the charges levelled in the impugned charge-sheet ignoring the departmental proceedings which continued from 2018 till 2021 and the petitioner cannot be made to suffer the disciplinary proceedings again from the stage one pursuant to new charge-sheet because she had already undergone previous disciplinary proceedings pursuant to the charge-sheet dated 30.05.2018 and the petitioner has already faced the mental agony, physical sufferings, professional and pecuniary losses, losses to her young son in his studies for the period of almost more than two and half years which itself would be a grave punishment to the petitioner without any fault on her part. Page 19 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 4.12) With regard to the charges levelled against the petitioner, it was submitted by learned Senior Advocate Mr. Mehta that all the charges are denied with regard to the authenticity of the document submitted by the petitioner along with the application made in the year 2007 inasmuch as the respondent bank has not disputed the genuineness of the Certificates produced by the petitioner. It was submitted that therefore, the charge questioning the authenticity of the documents is not sustainable on face of it. 4.13) With regard to the second charge levelled against the petitioner, it was submitted that same suffers from non application of mind inasmuch as no particular rule, guideline, procedure or provisions/ circular/ notification is made available so as to show that how and in what manner the same is violated. It was submitted that the Page 20 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 third charge is completely vague inasmuch as there is not a single incident or memo pointing out that the petitioner has not complied with the Rules of the bank nor any allegation is made pointing out inability/incompetence with respect to the work done or duty discharged by the petitioner.
4.14) It was submitted that the petitioner has never given any false information and in fact, the petitioner was confirmed in service on 9.12.2009 after following necessary procedures and prerequisite policies and the petitioner has not availed any benefit in "SC" category when she was promoted to Scale- II on 2.5.2012 and further promoted to Scale- III on 8.7.2015.
4.15) It was submitted that Chapter 8 of the Brochure of Department of Personnel and Page 21 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 Training (DoPT) with regard to verification of the claims of Schedule Castes, Schedule Tribes and Other Backward Classes, it is mentioned in clause 8.3 that it is the duty of the appointing authority to verify the caste status of a SC/ST/OBC candidate at the time of initial appointment and at the time of promotion against reserved vacancy also and it was further provided that for the said purpose, the caste and community to which a person belongs is required to be pasted on the top of his service book etc. to facilitate such verification. 4.16) It was therefore, submitted that the petitioner was appointed under General category and not under reserved category as no benefit is availed by the petitioner under SC/ST reservation category and merely because the petitioner has applied under "SC" category and in absence of any document Page 22 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 produced by the respondent bank to show that the petitioner was appointed under "SC" reservation category, charges levlled against the petitioner on face of it cannot be sustained.
4.17) It was submitted that the petitioner should not again be subjected to inquiry proceedings pursuant to the impugned charge- sheet as the petitioner has already undergone such proceedings.
4.18) Learned Senior Advocate Mr. Mehta submitted that the respondent bank has failed to supply the result or any documentary evidence to substantiate that the petitioner was recruited under the "SC" Category. It was submitted that it is not true and correct that because the petitioner applied under "SC" category, she was deemed to have been appointed under "SC" category. It was Page 23 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 submitted that there are all possibilities that petitioner though having applied under "SC" category by misconception, the result or merits of the candidate is required to be seen, but if the petitioner has secured higher marks than the "SC" candidates or the merits which were secured by the petitioner was sufficient enough to claim her under General/OBC category, the allegation of the bank would be meritless. It was submitted that the respondent bank has failed to refer to merit list and cut-off marks of each category in the impugned charge-sheet and therefore, in absence of such information, it cannot be said that the petitioner had not secured enough marks to get her appointment under General or OBC category and thereby no presumption can be drawn that the petitioner was appointed under "SC" category merely because the petitioner applied with Caste Certificate of "SC" category.
Page 24 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 4.19) It was submitted that the respondent bank has failed to point out the category in which the petitioner was appointed in the year 2007. It was further submitted that the Reservation Register of 2007 relied upon by the respondent bank also is of no help as the petitioner had applied for recruitment where 300 candidates were selected but the Reservation Register relied upon by the respondent bank reflected the number of posts in the cadre to 734 and in the cumulative list, the petitioner is shown at Serial no. 643 which reflects the candidate as "SC" candidate at Serial No.89 which is contrary to the fact as maximum 45 candidates could only be selected under "SC" category in the list of 300 candidates. It was therefore, submitted that the respondent bank has created the controversy with regard to the application of the petitioner in "SC" Page 25 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 category though the petitioner has not availed any relaxation of "SC" category including the age relaxation. It was pointed out that the petitioner never demanded any age relaxation nor was overage in the year 2007.
4.20) Learned Senior Advocate Mr. Mehta referred to the check-list relied upon by the respondent bank in the affidavit in reply to submit that there are two check-lists prepared and submitted, one by the petitioner and another by the concerned officer on the same date and the entire controversy started considering the said discrepancy as genuine. It was submitted that the petitioner has never claimed the age relaxation and hence the said mistake clearly reflects that the bank on its own and contrary to the true and correct facts created the controversy whereas the petitioner has never availed any benefits Page 26 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 as "SC" category candidate.
4.21) It was submitted by learned Senior Advocate that it is not the case of the bank that the petitioner had produced false Caste Certificate to get the benefit of the reserved category and relying upon the Caste Certificate of the petitioner of "Mochi community" which admittedly falls under OBC reserved category, the respondent bank at the time of recruitment could have pointed out that the Caste Certificates are invalid during the verification process. It was therefore, submitted that as the respondent bank did not raise any issue with regard to the Caste Certificate in 2007, it is to be presumed that the petitioner was appointed under General category on merits and after successful completion of 13 years in service of the bank, the issue raised by the respondent bank is nothing but misuse of the Page 27 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 powers by the higher officials to side track the allegations levelled in the written complaint filed by the petitioner so as to spoil her career progression.
4.22) It was submitted that merely because Caste Certificate produced by the petitioner was invalid for the purpose of "SC" category, the petitioner cannot be subjected to any inquiry proceedings after 13 years. It was therefore, vehemently submitted that the petitioner was never appointed in "SC" reserved category but she was appointed under General category and therefore, the issue of submission of invalid caste certificate does not arise at all. 4.23) It was submitted that the petitioner had given an extraordinary performance in her entire service and she was also awarded with various excellence certificates and Page 28 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 therefore, the petitioner cannot be subjected to charge-sheet which is based upon extraneous consideration and hence the same deserves to be quashed and set aside. 4.24) In support of his submission with regard to the delay in issuing the impugned charge-sheet by the respondent bank, learned Senior Advocate Mr. Mehta relied upon the following decisions:
1) P.V. Mahadevan v. Md. T.N. Housing Board reported in (2005) 6 Supreme Court Cases 636, wherein it is held as under:
"8. Our attention was also drawn to the counter affidavit filed by the respondent-Board in this appeal. Though some explanation was given, the explanation offered is not at all convincing. It is stated in the counter affidavit for the first time that the irregularity during the year 1990, for which disciplinary action had been initiated against the appellant in the year 2000, came to light in the audit report for the second half of 1994-1995.Page 29 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022
C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022
9. Section 118 and 119 of the Tamil Nadu State Housing Board Act, 1961 (Tamil Nadu Act No. 17 of 1961 read thus :
"118. At the end of every year, the Board shall submit to the Government an abstract of the accounts of its receipts and expenditure for such year.
119. The accounts of the Board shall be examined and audited once in every year by such auditor as the Government may appoint in this behalf."
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11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant.
Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As Page 30 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer."
2) UCO Bank and others v. Rajendra Shankar Shukla reported in (2018) 14 Supreme Court Cases 92, wherein it is held as under:
"12. We do not find any reason to interfere with the judgment and order passed by the High Court.
However, it is necessary for us to highlight a few facts which were brought to our notice during the course of submissions made by learned counsel. The first issue of concern is the enormous delay of about 7 years in issuing a charge sheet against Shukla. There is no explanation for this unexplained delay. It appears that some internal discussions were going on within the Bank but that it took the Bank 7 years to make up its mind is totally unreasonable and unacceptable. On this ground itself, the charge sheet against Shukla is liable to be set aside due to the inordinate and unexplained delay in its issuance." Page 31 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022
3) K.B.Trivedi v. State of Gujarat reported in 2001 (4) GCD 2630, wherein it is held as under:
"2. The appellant sought to challenge initiation of departmental enquiry pursuant to the charge-sheet dated 1.6.2000 which contained the allegations of misconduct which had allegedly taken place about 18 years ago. Thus, the Court was called upon to quash the charge-sheet only on the ground of delay. The petition of the appellant having been summarily dismissed, the respondents had no occasion to appear. However, upon notice being issued in this appeal, the respondents have appeared and filed an affidavit-in-reply of the Under Secretary of the department concerned.
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8. In absence of any explanation whatsoever for the prolonged delay in issuance of the charge-sheet in the facts of the present case and applying the ratio of the above judgments, we are of the opinion that the impugned charge-sheet and initiation of disciplinary proceedings cannot be allowed to stand against the appellant. We are also of the considered opinion that the inordinate and unexplained delay in issuance of the charge-sheet is on a footing worse to delay in concluding the departmental proceedings after its initiation.
Having the admission of the Page 32 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 respondent on record that the
department was aware of the alleged misconduct on the part of the appellant since the year 1989, the delay subsequent thereto has to be viewed all the more seriously. In such cases of delayed issuance of charge-sheet, the delinquent would not be aware of an impending departmental action and, in all probabilities, he would be seriously prejudiced in his defence as important evidence in his favour could have been lost or destroyed and his own memory would get blurred during the long period of complacency. Apart from these considerations, when a specific query was made as regards the time- limit envisaged for completion of the departmental enquiry, the learned Assistant Government Pleader appearing for the respondent expressly stated the inability of the department to make any statement in that regard. In such circumstances, it would be proper and necessary to set aside the impugned judgment and allow the original petition."
4) Rajesh Chamanlal Tank v. Narmada Water Resource and Kalpsar Department Through Secretary reported in 2020(1) GLH 32, wherein it is held as under:
"6. Reverting to the facts of the present case, charge-sheet to the Page 33 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 petitioner was issued after gap of 12 years from the time of the incident alleged. Inquiry officer was not appointed for the period of more than four years. In the meantime, petitioner retired in the year 2013. The charge-sheet was revised and issued for the second time soon after petitioner's retirement. Thus, the delay, lethargy and apathy on part of the department was manifest at every stage. In the aforesaid view, the inquiry proceedings after such unreasonable and gross delay could not be allowed to sustain against the petitioner, as allowing the inquiry proceedings to proceed after such delay would be harsh, inequitable arbitrary and against the principles of fairness. The factor of delay itself has to be held to be the cause of prejudice to the petitioner in defending the charges."
5) Kumari Madhuri Patil and another v. Addl. Commissioner, Tribal Development and others reported in AIR 1995 Supreme Court 94.
5. Learned advocate Mr. Darshan M. Parikh appearing for the respondent bank submitted that the respondent bank in the affidavit in Page 34 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 reply has not dealt with the merits of the case of the petitioner as the bank has issued charge-sheet and the petitioner is called upon to state her defence so that the decision can be taken whether any departmental inquiry is required to be conducted against the petitioner or not to find out if any acts of commission or omission are proved against the petitioner or not.
5.1) It was submitted that the respondent bank has responded to the submissions of the petitioner on merits of the case which may not be in any manner be construed to be decision already taken by the bank as the petition is filed at the stage when the charge-sheet is issued and the respondent bank may consider the reply of the petitioner to determine as to whether inquiry to be held or not. It was therefore, submitted that the Page 35 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 petition is premature as the petitioner is required to file reply to the charge-sheet. 5.2) Learned Advocate Mr. Parikh submitted that earlier petition being Special Civil Application No.19134/2018 was filed suppressing the material facts that inquiry pursuant to the charge-sheet issued to the petitioner was over and inquiry report was awaited. Learned advocate Mr. Parikh submitted that the petitioner moved an amendment in the said petition with a prayer to quash charge-sheet on the ground that the charge-sheet was issued by an authority lower than the authority who ought to have issued it and in view of such submission, the respondent bank filed a purshish to withdraw charge-sheet dated 30.05.2018 with a liberty to issue a fresh charge-sheet and accordingly, the said petition was disposed of by order dated 21.01.2021.
Page 36 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 5.3) Learned advocate Mr. Parikh referred to and relied upon the paper book of Special Civil Application No.19134/2018 and Civil Application No. 1/2019 filed therein and the paper book consisting of list of events, notes, purshish and copies of judgments submitted before the Court, so as to demonstrate that the petitioner did not bona fide applied as "SC" category candidate and her defense that she was not aware of delisting of "Mochi community" and came to know about it only when she received letter dated 25.9.2017 from the bank and if she was aware she would have applied as OBC category candidate and she bonafide applied under "SC" category cannot be looked into in this petition as the same would be considered by the respondent bank after receiving the reply which may be filed by the petitioner. Page 37 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 5.4) Learned Advocate Mr. Parikh referred to the declaration made by the petitioner along with application form which is at page-62 of the paper book to contend that the petitioner has agreed by signing the declaration form that if any information given by her is not true or correct, her appointment is liable to be cancelled or terminated at any stage. It was pointed out that the copy of attestation form produced by the petitioner at page 139 to 141 of the petition is different than the attestation form available on record of the respondent bank. Learned Advocate Mr. Parikh submitted that Attestation Form available on record is produced along with a separate note and referring to the same at page 11 to 13, it was pointed out that the petitioner claimed to be "SC" candidate in reply to the information given in Para 9(b) thereof. Attention of the Court is also invited to the Page 38 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 opening paragraph no.11 of the Attestation Form which inter-alia provides that "If the fact that false information has been furnished or there has been a suppression of any factual information in the attestation form comes to the notice at any time during the service of a person, his services would be liable to be terminated."
5.5) Thereafter, learned advocate Mr. Parikh referred to the advertisement issued by the respondent bank at page no. 260 annexed along with the affidavit in reply to point out that clause(1) of the advertisement refers to details of vacancies, clause (2) provides for procedure as to how to apply, clause (6) prescribes the application fees and clause 7(d) provides for relevant certificates to be produced by the applicant. It was submitted that the petitioner has paid application fees of Rs. Page 39 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 50/- applicable to "SC" candidate as per clause 6(a) of the advertisement and therefore, the petitioner cannot be said to have applied in any other category than the "SC" category.
5.6) It was further submitted that as per the merit list of 300 candidates selected for Probationary Officer - Project 2007 produced at page nos. 261 to 265 with the affidavit in reply, the name of the petitioner appears at Serial No. 241 at Merit No.5 of "SC" Category. Learned Advocate Mr. Parikh also referred to the Reservation Register which is also known as 'Roster' maintained by the respondent bank for finding out the details of the candidates of each category which is produced at Anneuxre-R3 with the affidavit in reply which shows the name of the petitioner at Serial No. 643 as "SC" candidate. It was therefore, submitted that the petitioner Page 40 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 entered the service as "SC" candidate and was given employment as "SC" candidate in the vacancy in "SC" category. It was submitted that the Reservation Register is a continuous register and it is not maintained recruitment process wise and it is a continuous list of SC/ST/OBC from no. 1 onwards as per the Government Reservation policy. 5.7) It was pointed out that when a person of reserved category of any kind is employed in General category on merits "BY MERIT" is mentioned in remark column for the purpose of bank record to show that though the person is of reserved category, he/she is recruited as unreserved category candidate and not against the reserved post. It was demonstrated that Roster number is not mentioned after mentioning the category in case a person is taken in unreserved category though such person belongs to reserved Page 41 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 category to show that person is on merits and not a part of the Roster.
5.8) Learned advocate Mr. Parikh invited the attention of the Court to the Serial No. 610 in Reservation register of Mr. Potharaj Sivakumar to point out that though he belonged to OBC category, Roster number is not mentioned and in remarks column "BY MERIT" is mentioned, whereas in case of the petitioner, her name appears as "SC" candidate at Serial no. 643 and her 'Roster' number is shown as SC_89. It was therefore, submitted that the petitioner was appointed against the post reserved for "SC" candidate. 5.9) Learned advocate Mr. Parikh submitted that the charge-sheet is issued to find out if the petitioner legally and validly entered in the employment of the Bank as a "SC" candidate or not and if the petitioner was not "SC" in Gujarat or though Page 42 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 the petitioner was "SC" in Rajasthan on the day she entered the employment as a "SC" candidate on a vacancy/ post reserved for "SC" candidate, would she be entitled to continue in the employment or not. It was therefore, submitted that charge-sheet is issued for reply of the petitioner so as to ascertain if the entry in employment was or was not on the basis of certificates which were not valid documents as they were not having force, efficacy or cogency in law, or were not legally binding on the day on which the application was made or the employment was taken and whether such an employment can be permitted to be continued or not. It was submitted that all such issues would have to be decided after the petitioner files her reply to the charge-sheet and after conducting fresh inquiry if required. 5.10) Learned advocate Mr. Parikh Page 43 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 referred to the dictionary meaning of word "invalid" referring to the New Shorter Oxford Dictionary and Black Law's Dictionary. It was submitted that looking to the certificate issued on 07.07.1994 which declared the petitioner to be a person falling under category "SC" at a point of time when the "Mochi community" was included in the list of "SC" category, would not have any force of law in Gujarat when subsequently in 2003, the "Mochi community" was delisted from the list of Scheduled Caste. It was submitted that since the recruitment by the bank was made in 2007, prima facie, such a certificate would not be valid to enable the petitioner to get employment as a "SC" candidate in a post/vacancy reserved for "SC" category. It was therefore, submitted that such issues are required to be considered by the respondent bank pursuant to the reply which may be filed by the petitioner in response to the charge- Page 44 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 sheet issued by the respondent bank on 9.02.2021.
5.11) With regard to the contention raised on behalf of the petitioner that Caste Certificate issued by Rajasthan Government showing "Jeengar community" being "SC" community in the State of Rajasthan as the petitioner married to a person belonging to such community, the petitioner would also have to be considered as belonging to "SC" category, is not tenable in view of the decision of the Supreme Court in case of Action Committee on issue of Caste Certificate to Schedule Tribes in the State of Maharashtra and another v. Union of India and another reported in 1994 AIR SCW 3305, wherein the Hon'ble Supreme Court while considering the question of privileges to be claimed and benefits admissible to persons belonging to Schedule Caste and Schedule Page 45 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 Tribe in a different State held that merely because a given caste is specified in a particular State as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State, the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the later State. It was therefore, submitted that the petitioner, prima facie, could not have claimed reservation on the basis of her caste certificate in Rajasthan for employment in Gujarat. It was pointed out that these submissions are made on behalf of the respondent bank to meet with the contention of the petitioner that the word "invalid" used in the Charge-sheet is not permissible and the Bank has no right to hold the certificates to be invalid and only Caste Scrutiny Committee can look into it. Learned Page 46 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 advocate Mr. Parikh therefore, submitted that irrespective of the genuineness of the Caste Certificate, the question would be to find out if the said certificate can be validly utilized by the petitioner in the year 2007 to claim that she is a candidate belonging to the "SC" category or not. It was submitted that it was in the said context the word "invalid" would have to be construed so as to find out whether the certificate issued in Gujarat in the year 1994 declaring the petitioner belonging to "Mochi" caste as "SC" which is delisted and listed under OBC in the year 2003 can be considered as a valid certificate to claim "SC" status in 2007 and whether the certificate issued by the State of Rajasthan can be validly used to claim "SC" status in the State of Gujarat or not. It was submitted that such questions would be considered in the proceedings which may be initiated on receipt of the reply of the Page 47 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 petitioner by the respondent bank. It was submitted that for deciding such issues, the matter is not required to be sent to a Caste Scrutiny Committee as it is not an issue to find out whether the particular community falls in a particular reserved category or not.
5.12) It was submitted that if the entry of the petitioner is illegal or impermissible on the basis of Caste Certificate produced by her, the petitioner would not be able to continue in service and such exercise is required to be undertaken to find out the correctness of the allegations made against the petitioner in the charge-sheet. 5.13) Learned advocate Mr. Parikh thereafter also made submissions with regard to the distinction between "fake" and "invalid" certificate. It was submitted that Page 48 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 the respondent bank is not trying to invalidate the certificate but if the certificate produced by the petitioner is not a valid document to claim the status of the "SC" category then the respondent bank is entitled to carry out inquiry with regard to the charges levelled against the petitioner. 5.14) Learned advocate Mr. Parikh submitted that it is the case of the respondent bank in the charge-sheet that the petitioner was selected and employed in the post of reserved "SC" category and the name of the petitioner in the merit list is at Serial No.241 showing that petitioner stood at Serial No.5 in the merit of "SC" candidate and not in General merits on the basis of the certificates produced by the petitioner claiming her status as "SC" candidate. It was therefore, submitted that the charges levelled against the petitioner are required Page 49 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 to be considered during the inquiry which may be initiated by the respondent bank. 5.15) With regard to the contention raised on behalf of the petitioner that the petitioner has not taken any advantage of the "SC" category, it was submitted that the fact remains that the petitioner entered in service on the basis of Caste Certificate produced along with the application form and was selected in the merits of "SC" category on the post reserved for "SC" candidate which itself was a benefit availed by the petitioner. It was therefore, submitted that after considering the reply of the petitioner, the respondent bank may proceed with the inquiry with regard to the charges levelled in the charge-sheet.
5.16) Learned advocate Mr. Parikh submitted that the petitioner has raised Page 50 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 various disputed questions of fact for which adjudication is sought before this Court in this petition which is not permissible in law.
5.17) With regard to the contention of delay in issuing charge-sheet of more than 13 years raised by the petitioner, it was submitted by learned advocate Mr. Parikh that this is not a case of functional or administrative or behavioral misconduct during the employment of the petitioner and if the petitioner had no legal right to enter the employment or continue to hold the employment, the petitioner cannot be protected on ground of equity or delay. 5.18) It was submitted that merely because the bank had not taken any action against the petitioner earlier, it would not legitimize her entry in the bank in "SC" category on the Page 51 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 basis of Caste Certificates produced by her. It was submitted that assuming without admitting that the bank ought to have taken an immediate action, it is required to be considered as to when and how the bank came to know about the allegation that the petitioner is not a "SC" candidate. In support of his submission, reference was made to the following averments made in the affidavit in reply filed on behalf of the respondent bank :
"7. I state that the petitioner was posted at Deesa, District Banaskantha. By order dated 08.05.2017 she was transferred to Palanpur, District Banaskantha, where her parental home is situated. After her transfer to Palanpur, the petitioner started making various grievances against the then Regional Manager. One such Complaint was also made to the Director of the Bank. Consequently, the Zonal office started an investigation into the allegation against the Regional Manager by appointing Ms. Harita Dave, a Lady Liaison Officer of Ahmedabad Region to look into the allegations. During such investigation by the Zonal Office, an allegation of the petitioner not being a Page 52 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 candidate of "SC" Community came to light. Consequently, the Bank authorised Shri K. H. Solanki, a Chief Manager of the Bank and Zonal Liaison Officer for SC/ST/PH & Ex-Servicemen to look into the allegations of the Petitioner not being of "SC" Community The Petitioner, relies upon an alleged communication dated 12.06.2008 between the Branch and the Regional Office regarding the petitioner, which has never been within the knowledge of the Zonal Office or the appointing authority. In arity in fact, no such letter is found even in the records of the Regional office after inquiry. Hence, as soon as the information was received by the Zonal Office, in 2018, after consultation with the appropriate authority the action against the petitioner have been taken and no fault can be found with such action, on the ground of delayed action. The alleged letter of the dated 30.05.2008 is not a copy of any original letter. It does not bear any name of any branch. Similarly, the alleged letter dated 12.06.2008 allegedly issued by the alleged branch does not bear any outward Reference No. of the Branch. It is not found from the records of the Regional Office of the Bank after inquiry. Apart from that, the same is mentioned that there is no SC/ST candidate belonging to Mochi Community and that She was Mochi "SC" before marriage and Jeengar "SC"
community after marriage. Thus, even if the alleged letter was written by the Branch or received by the Regional Office, there is no allegation or clarity regarding she not being an "SC" Candidate can be seen. It cannot be said Page 53 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 or alleged relying on the said letter that the said letter was received by the Regional Office or was brought to the notice of the Zonal Office or Head Office of the Bank to take action by the appropriate authority. The veracity of the document is doubtful as the same is not found on the record of the Regional Office. Thus, by no stretch of imagination, it can be presumed that the Bank management was aware of the status of the petitioner in 2007/08 to initiate proceeding against her then but had chosen not to do so as alleged or otherwise. The information contained in the alleged letter is also contradictory, considering the first para that "there is no SC/ST candidate belonging to Mochi Community at our Branch". I deny that in 2008, the Bank was well aware that the Petitioner belonged to Mochi Community, a de-listed community from 2003 as alleged or otherwise. I do not admit that the Bank had ensured not to extend any benefit to her considering her as SC candidate as alleged or otherwise or has in fact not granted any such benefit to her as alleged or otherwise. I deny that the petitioner was selected as a general category employee as alleged or otherwise. I state that the Petitioner was not standing on merits enough to be selected as a General Category Candidate and was selected as a "SC" Candidate. I state that the name of the Petitioner was recommended to the Bank by IBPS as a "SC" candidate and she was absorbed in the Bank against the vacancy reserved for an "SC" candidate. I state that if any candidate is standing in merit Page 54 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 higher than the candidate in general category, such candidates have been given employment as if they were general category candidates. However, since, the petitioner was not falling in such merits, her case was recommended and considered only on SC reserved category, as can be seen from Annexure R-2." 5.19) Referring to the above averments, it was submitted by learned advocate Mr. Parikh that the bank after investigation issued charge-sheet and immediately started an inquiry which was over on 23.11.2008 and after the inquiry was over, the petitioner preferred Special Civil Application No.19134/2018 and entire process was stalled. It was therefore, pointed out that the respondent bank has started the proceedings against the petitioner on the basis of the information available with the respondent bank to initiate the proceedings. 5.20) With regard to the submission made by the petitioner on the basis of the alleged Page 55 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 letters of the Regional office and the branch in the year 2008, it was submitted that such letters are internal communication of the bank, to which the petitioner was neither a party nor a privy and such letters do not explain how the Branch Manager was aware of the certificates produced by the petitioner. It was submitted that such fact can be gone into in inquiry proceedings which may be initiated pursuant to the charge-sheet issued and the petitioner cannot raise such issues in this petition as it would involve the disputed questions of fact. It was submitted that veracity of the letters relied upon by the petitioner is also doubtful which can be looked into during the course of inquiry. 5.21) With regard to the contention raised on behalf of the petitioner that she was appointed in General category and not in "SC" category by the respondent bank, it was Page 56 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 submitted that such contention can be looked into during the course of inquiry proceedings after considering the reply and oral and other documentary evidence which may be produced by the petitioner as well as the respondent bank in the inquiry proceedings. 5.22) Learned advocate Mr.Parikh submitted that decision relied upon by the petitioner in case of Kumari Madhuri Patil and another (supra) only provides that admission wrongly gained or appointment wrongly obtained has to be considered by the Court. The Apex Court held as under :
"16. We have seen that Miss Suchita rightly made an application before the competent officer within whose jurisdiction her father lives in Muland and when he refused to give the certificate, she filed an appeal; approached the High Court and obtained direction and gained admission. It is not in dispute that the Additional Commissioner was delaying it; he did not decide as directed by the High Court, instead Page 57 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 directed the Tahsildar to issue the certificate. Thus she secured a false social status certificate and orders of the court were used to gain admission. The judicial process is made use of to secure admission. She continued her studies thereafter pending scrutiny of her status certificate. No doubt there was a delay on the part of the Scrutiny Committee in the disposal of the claims and we do not find any record to scan the reasons for the delay. Suffice to state that her parents have put her under a cloud as to her social status. But as seen from the facts a course of conduct was adopted by her parents to gain admission on the claim which is now found to be false. Parents' misconduct visits the children also many a times. However, she has now completed the course of study except to appear for the final year as contended for her and nothing more is to be done in the situation for her to complete her course of study. We direct the Principal to permit her to sit for the final year examination, if she has completed the course of study as represented to us but not with the social status as a Scheduled Tribe which was claimed fraudulently and made her admission with the aid of the court's order and continue her studies. The delay in disposal facilitated her continuance in study of MBBS course.
17. The delay in the process is inevitable but that factor should Page 58 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 neither be considered to be relevant nor be an aid to complete the course of study. But for the fact that she has completed the entire course except to appear for the final examination, we would have directed to debar her from prosecuting the studies and appearing in the examination. In this factual situation no useful purpose would be served to debar her from appearing for the examination of final year MBBS. Therefore, we uphold the cancellation of the social status as Mahadeo Koli fraudulently obtained by Km Suchita Laxman Patil, but she be allowed to appear for the final year examination of MBBS course. She will not, however be entitled in future for any benefits on the basis of the fraudulent social status as Mahadeo Koli. However, this direction should not be treated and used as a precedent in future cases to give any similar directions since the same defeats constitutional goals.
18. In the case of Madhuri Laxman Patil, she did not approach the competent officer. She appears to have wrongly gone to an officer who had no jurisdiction, obviously she has shown the order issued by the High Court in favour of her sister Suchita and secured the certificate and got the admission. Though she is in midway of her study in BDS in the end of second year, she cannot continue her studies with her social status as Mahadeo Koli, a Scheduled Tribe and the concessions which she Page 59 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 might have got on that account. If she was eligible for obtaining admission as a general candidate she may continue her studies. Therefore, we uphold the cancellation and confiscation of her and of Suchita of social status as Mahadeo Koli ordered by Scrutiny Committee and affirmed by the order of Appellate Authority and that of the High Court in that behalf. Subject to the above modifications, the appeal is dismissed but without costs."
5.23) Learned advocate Mr. Parikh thereafter, placed reliance on the following decisions :
1) In case of Union of India v.
Dattatray Namdeo Mendhekar and ors. reported in AIR 2008 Supreme Court 1678, the Hon'ble Supreme Court held that a person cannot be allowed to retain the benefits of wrong committed by him as under; :
"2. The first respondent, who claimed that he belonged to a Scheduled Tribe Halba, was appointed as an Assistant Professor of Psychiatry in G. B. Pant Hospital, New Delhi, in a post reserved for Schedule Tribes, vide O.M dated Page 60 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 21.6.1990 of the Ministry of Health & Family Welfare, subject to caste status verification. He joined duty on 20.9.1990. One of the conditions subject to which he was offered appointment was that if any declaration given or information furnished by him was proved to be false, he will be liable for removal from service and other action which the government may deem appropriate. His claim that he belonged to a Scheduled Tribe was referred for verification. The Tehsildar Mohadi, on verification, sent a communication on 9.5.1991 that first respondent did not belong to Halba community. As first respondent questioned the report of the Tehsildar and asserted that he belonged to Halba tribe, his claim was referred to the Tribal Research & Training Institute, Pune for verification on 16.10.1992. On 6.3.1999, the Scrutiny Committee for verification of certificates of Schedule Tribes, informed the Ministry that the respondent did not belong to the Halba Tribe (ST). The Ministry, therefore, issued an OM dated 15.3.1999 calling upon the first respondent to show cause why his services should not be terminated for falsely claiming to belong to Halba Tribe. The first respondent challenged the decision of the Screening Committee in W.P. No.1176/1999. The High Court by judgment dated 6.4.2005 upheld the order dated
6.3.1999 of the Scrutiny Committee invalidating the first respondent's claim that he belonged to 'Halba' tribe, and directed that the first respondent will not be entitled to any of the Page 61 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 benefits as a member of the Scheduled Tribe, from the date of its decision. The High Court however directed that the first respondent's services shall not be disturbed on the ground that he did not belong to a Scheduled Tribe. The said benefit of continuation in service, despite invalidation of claim regarding tribe, was extended by the High Court, purporting to follow the decision of this Court in State of Maharashtra vs. Milind - 2001 (1) SCC 4.
3. In the meanwhile on 27.8.2004, first respondent is stated to have tendered his resignation with effect from 25.9.2004. It is also stated that the first respondent has not attended to duty from 13.10.2004. The resignation was not accepted by the Ministry, as the matter was then sub-judice. The first Respondent made an application dated 25.3.2005 before the High Court stating that as he had resigned from the post, his writ petition may be disposed of without considering the matter on merits. The said application was not taken note of, by the High Court, while disposing the writ petition.
4. Feeling aggrieved by the direction of the High Court to continue the first respondent in service, the appellant has filed this appeal by special leave. The appellant contended that the High Court has erred in assuming that Milind (supra) protected the appointments made on the basis of wrong claim of caste/tribe, if the employee gave up his claim to scheduled tribe status and accepted the order of the Scrutiny Committee.
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5. Milind (supra) related to a Medical College admission. The question that arose for consideration in that case was whether it was open to the State Government or Courts or other authorities to modify, amend or alter the list of Scheduled Tribes and in particular whether the "Halba-Koshti"
was a sub-division of 'Halba' Tribe.
This Court held that it was not permissible to amend or alter the list of Schedule Tribes by including any sub- divisions or otherwise. On facts, this court found that the respondent therein had been admitted in medical course in ST category, more than 15 years back; that though his admission deprived a scheduled tribe student of a medical seat, the benefit of that seat could not be offered to scheduled tribe student at that distance of time even if respondent's admission was to be annulled; and that if his admission was annulled, it will lead to depriving the services of a doctor to the society on whom the public money had already been spent. In these peculiar circumstances, this Court held that the decision will not affect the degree secured by respondent or his practice as a doctor but made it clear that he could not claim to belong to a Scheduled Tribe. But the said decision has no application to a case which does not relate to an admission to an educational institution, but relates to securing employment by wrongly claiming the benefit of reservation meant for Schedule Tribes. When a person secures employment by making a false claim regarding caste/tribe, he deprives a legitimate Page 63 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 candidate belonging to scheduled caste/tribe, of employment. In such a situation, the proper course is to cancel the employment obtained on the basis of the false certificate so that the post may be filled up by a candidate who is entitled to the benefit of reservation.
6. In this context, we may also refer to the decisions in Bank of India v. Avinash D.Mandivikar (2005) 7 SCC 690 and Additional General Manager Human Resources, Bharat Heavy Electricals Ltd. V. Suresh Ramkrishna Burde, 2007 (5) SCC 336, wherein this Court held that when a person secures appointment on the basis of a false caste certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his services are liable to be terminated. In the latter case, this Court explained Milind thus :
"The High Court has granted relief to the respondent and has directed his reinstatement only on the basis of the Constitution Bench decision of this Court in State of Maharashtra v. Milind. In our opinion the said judgment does not lay down any such principle of law that where a person secures an appointment by producing a false caste certificate, his services can be protected and an order of reinstatement can be passed if he gives an undertaking that in future he and his family members shall not take any advantage of being member of a caste which is in reserved category."Page 64 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022
C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 This Court further held that even in cases of admission to educational institutions, the protection extended by Milind (supra) will be applicable only where the candidate had successfully completed the course and secured the degree, and not to cases where the falsehood of the caste certificate is detected within a short period from the date of admission.
7. We are of the view that the High Court failed to appreciate the ratio of Milind. Having held that the first respondent had falsely claimed that he belonged to a Schedule Tribe, it wrongly extended him the benefit of continuing in employment.
8. We, therefore, allow this appeal and set aside the judgment of the High Court in so far as it directs the appellant to continue the first respondent in service. However, as the first respondent has submitted his resignation even before the writ petition was decided, and has not attended to duty from 13.10.2004, his terminal benefits, if any due to him, may be settled. It is however made clear that he will not be entitled to any pensionary benefit."
2) In case of Chairman and Managing Director, FCI and ors. v. Jagdish Balaram Bahira and others reported in AIR 2017 Supreme Court 3271, wherein the Apex Court held as under:
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C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 "39 The backdrop for the decision in Madhuri Patil (supra) was provided by the significant scale on which benefits were secured by imposters by passing themselves off as members of castes, tribes and classes for whom reservations have been earmarked pursuant to constitutional provisions. By its directions which this Court issued on 2 September 1994 provision was made for the constitution of committees for verification of claims belonging to a designated caste, tribe or class. This Court explained the modalities to be followed by the Scrutiny Committees and the manner in which action would be taken if a claim was found to be false.
The directions which were issued by this Court envisaged that upon a claim being found to be false or spurious :
(i) the Caste Scrutiny Committee should pass an order cancelling and confiscating the certificate;
(ii) the cancellation of the certificate should be communicated to the educational institution where the candidate has been admitted or to the appointing authority where the candidate is employed;
(iii) upon this, the head of the institution or the appointing authority should cancel the admission or appointment without further notice and debar the candidate from further study or continuance in office; and
(iv) a prosecution should be launched against the candidate or, as the case may be, the parents or guardians responsible for making the false claim.Page 66 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022
C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 The regime postulated in the judgment of this Court in Madhuri Patil (AIR 1995 SC
94) took effect from 2 September 1994, which was the date of the judgment. Eventually in the State of Maharashtra these directions received legislative recognition upon the enactment of the Maharashtra Act XXIII of 2001 which came into force in the State on 18 October 2001. However, it is important to notice that even before the State Legislature stepped in to confer a statutory form to the directions which were issued by this Court in Madhuri Patil (supra) the regime, as it then obtained prior to the enactment of the law, also envisaged consequences upon a caste or tribe claim being found to be false upon a verification by the Scrutiny Committee. The cancellation of a certificate would, as a necessary consequence, involve the invalidation of the appointment to a post or admission to an educational institution. Where a candidate had been appointed to a reserved post on the basis of the claim that he or she was a member of the group for which the reservation is intended, the invalidation of the claim to belong to that group would, as a necessary consequence, render the appointment void ab initio. The rationale for this is that a candidate who would otherwise have to compete for a post in the general pool of unreserved seats had secured appointment in a more restricted competition confined to the reserved category and usurped a benefit meant for a designated caste, tribe or class. Once it was found that the candidate had obtained admission upon a false Page 67 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 representation to belong to the reserved category, the appointment would be vitiated by fraud and would be void ab initio. The falsity of the claim lies in a representation that the candidate belongs to a category of persons for whom the reservation is intended whereas in fact the candidate does not so belong. The reason for depriving the candidate of the benefit which she or he has obtained on the strength of such a claim, is that a person cannot retain the fruits of a false claim on the basis of which a scarce public resource is obtained. The same principle would apply where a candidate secures admission to an educational institution on the basis of a false claim to belong to a reserved category. A candidate who does so causes detriment to a genuine candidate who actually belongs to the reserved category who is deprived of the seat. For that matter a detriment is caused to the entire class of persons for whom reservations are intended, the members of which are excluded as a result of an admission granted to an imposter who does not belong to the class. The withdrawal of benefits, either in terms of the revocation of employment or the termination of an admission was hence a necessary corollary of the invalidation of the claim on the basis of which the appointment or admission was obtained. The withdrawal of the benefit was not based on mens rea or the intent underlying the assertion of a false claim. In the case of a criminal prosecution, intent would be necessary. On the other hand, the withdrawal of civil benefits flowed as a logical Page 68 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 result of the invalidation of a claim to belong to a group or category for whom the reservation is intended. This was the position under the regime which prevailed following the decision in Madhuri Patil.
40 The Constitution Bench of this Court which decided Milind (AIR 2001 SC 393) was on a reference whether it is permissible to hold an enquiry and let in evidence to decide or declare that any tribe or tribal community or a part or group within the tribe or community is included in the general name, even though it is not so specifically mentioned in the entry contained in the Constitution (Scheduled Tribes) Order, 1950. The Constitution Bench held that it was not permissible either to hold an enquiry or to allow evidence to decide that though a tribe (or its sub group) is not specifically included in the Scheduled Tribes Order, 1950 it must, nonetheless, be treated or deemed to be included in the general name. The view of this Court is that an entry in the Order has to be read as it stands. However, the Constitution Bench in paragraph 38 of its decision, having due regard to the circumstances of the individual cases before the Court, protected the degree obtained by the candidate concerned. This Court also provided that having regard to the passage of time including interim orders which were passed, the admissions and appointments that have become final would remain unaffected by the judgment. The observations in paragraph 38 of the decision of the Constitution Bench have been construed in at least the following Page 69 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 judgments of this Court as directions referable to Article 142 of the Constitution :
(i) Bank of India Vs. Avinash D.Mandivikar(AIR 2005 SC 3395)
(ii) Additional General Manager- Human Resource, Bharat Heavy Electricals Ltd. Vs. Suresh Ramkrishna Burde (AIR 2007 SC 2048)
(iii) Union of India Vs. Dattatray, S/o. Namdeo Mendhekar(AIR 2008 SC 1678) ; and
(iv) Yogesh Ramchandra Naikwadi Vs. State of Maharashtra (AIR 2008 SC 1678) 41 Since the decision of the Bench of three judges in R. Vishwanatha Pillai Vs. State of Kerala (AIR 2004 SC 1469) the position of law which has been laid down by this Court is that where an appointment to a post or admission to an educational institution is made against a vacancy which is reserved for a Scheduled Caste or Tribe or a socially and educationally backward class, the invalidation of the claim of the candidate would result in the appointment or, as the case may be, the admission being void and non est. This principle has been followed by another judgment of three Judges in Dattatray (AIR 2008 SC 1678). The same position has been propounded by a two judge bench in Bank of India Vs. Avinash Mandivikar (AIR 2005 SC 3395). The formal termination of an employment or the withdrawal of admission is a necessary consequence which flows out of the invalidation of the caste or tribe claim. The only exception to this Page 70 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 principle consists of those cases where, in exercise of the power conferred by Article 142, the Court considered it appropriate and proper to protect the admission which was granted or, as the case may be, the appointment to the post.
xxx
57 For these reasons, we hold and
declare that
(i) The directions which were
issued by the Constitution Bench of thisCourt in paragraph 38 of the decision in Milind were in pursuance of the powers vested in this Court under Article 142 of the Constitution;
(ii) Since the decision of this Court in Madhuri Patil which was rendered on 2 September 1994, the regime which held the field in pursuance of those directions envisaged a detailed procedure for (a) the issuance of caste certificates; (b) scrutiny and verification of caste and tribe claims by Scrutiny Committees to be constituted by the State Government; (c) the procedure for the conduct of investigation into the authenticity of the claim; (d) Cancellation and confiscation of the caste certificate where the claim is found to be false or not genuine; (e) Withdrawal of benefits in terms of the termination of an appointment, cancellation of an admission to an educational institution or disqualification from an electoral Page 71 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 office obtained on the basis that the candidate belongs to a reserved category; and (f) Prosecution for a criminal offence;
(iii) The decisions of this Court in R. Vishwanatha Pillai and in Dattatray which were rendered by benches of three Judges laid down the principle of law that where a benefit is secured by an individual - such as an appointment to a post or admission to an educational institution - on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon verification would result in the appointment or, as the case may be, the admission being rendered void or non est.
(iv) The exception to the above doctrine was in those cases where this Court exercised its power under Article 142 of the Constitution to render complete justice;
(v) By Maharashtra Act XXIII of 2001 there is a legislative codification of the broad principles enunciated in Madhuri Patil. The legislation provides a statutory framework for regulating the issuance of caste certificates (Section
4); constitution of Scrutiny Committees for verification of claims (Section 6); submission of applications for verification of caste certificates (Section 6(2) and 6(3); cancellation of caste certificates (Section 7); burden of proof (Section 8); withdrawal of benefits obtained upon the invalidation of the claim (Section 10); and Page 72 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 initiation of prosecution (Section 11), amongst other things;
(vi) The power conferred by Section 7 upon the Scrutiny Committee to verify a claim is both in respect of caste certificates issued prior to and subsequent to the enforcement of the Act on 18 October 2001. Finality does not attach to a caste certificate (or to the claim to receive benefits) where the claim of the individual to belong to a reserved caste, tribe or class is yet to be verified by the Scrutiny Committee;
(vii) Withdrawal of benefits secured on the basis of a caste claim which has been found to be false and is invalidated is a necessary consequence which flows from the invalidation of the caste claim and no issue of retrospectivity would arise;
(viii) The decisions in Kavita Solunke and Shalini of two learned Judges are overruled. Shalini in so far as it stipulates a requirement of a dishonest intent for the application of the provision of Section 10 is, with respect, erroneous and does not reflect the correct position in law;
(ix) Mens rea is an ingredient of the penal provisions contained in Section
11. Section 11 is prospective and would apply in those situations where the act constituting the offence has taken place after the date of its enforcement;
(x) The judgment of the Full Bench of the Bombay High Court in Arun Sonone is manifestly erroneous and is overruled; and Page 73 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022
(xi) Though the power of the Supreme Court under Article 142 of the Constitution is a constitutional power vested in the court for rendering complete justice and is a power which is couched in wide terms, the exercise of the jurisdiction must have due regard to legislative mandate, where a law such as Maharashtra Act XXIII of 2001 holds the field."
xxx The appellant was appointed as a Junior Lecturer in the fourth respondent High School on a post reserved for the Scheduled Tribes on 2 July 1991 on the basis of a caste certificate dated 23 July 1984 stating that she belongs to the Halba Schedule Tribe. On 14 March 1997 the appellant's appointment as a Junior Lecturer was confirmed by the fourth respondent. The Scrutiny Committee invalidated the caste claim of the appellant by its order dated 8 November 2012. The High Court by its impugned judgment and order dated 5 April 2013 has declined to grant protection of services. The appellant preferred a review which was dismissed by the High Court by its order dated 10 May 2013. For the reasons contained in the body of the judgment and having due regard to the invalidation of the claim of the respondent by the Scrutiny Committee, we find no error in the judgment of the High Court. The Civil Appeals are accordingly dismissed."
3) In case of Union of India v. Dalbir Page 74 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 Singh and another reported in AIR 2009 Supreme Court 2438, the Apex Court held that a person who has never claimed to be considered in General category, his case cannot be directed to be considered in General category as under:
"10. Pursuant to the aforesaid employment notice, respondent No. 1, filed his application to consider his case under OBC category. In support of his claim, he had produced caste certificate. It so happens that the certificate produced was found to be defective. This has resulted in not enlisting his name in the select list. Respondent at no point of time had claimed before the authorities that if for any reason, his case cannot be considered under OBC category, at least appellants should consider his case under the general merit list. From the pleadings, it appears to us, that the appellants had prepared two sets of lists. The first one being the list of those candidates who had staked their claim in the general merit and the second list contains those candidates who had opted for consideration of their case under OBC category. The respondent at no point of time had taken exception to the procedure adopted by the appellants in preparing the select list. In our opinion, having opted to consider Page 75 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 his case only under OBC category, he cannot thereafter claim that his case requires to be considered in the general merit, only because, he has scored better percentage of marks than the last selected candidate in the general merit.
In our considered view, the
Administrative Tribunal having found
that the appellants were justified in not considering the respondent's case for appointment under OBC category, ought not to have directed the appellants to consider his claim under general category."
4) Reliance was placed on the decision of this Court in case of Shashikala Gaurishankar Pal v. Regional Manager (Order dated 18.12.2003 passed in Special Civil Application No.7852/2003), wherein in case of similar inquiry, this Court has not entertained the petition as under:
"Heard the learned advocates. The petitioner before this Court is the employee of the Bank of Baroda, the respondent herein [hereinafter referred to as, `the Bank'] posted at Godhara, District Panch Mahals. It appears that at the time of securing employment in the Bank the petitioner had, alongwith her Bio- data, produced a Caste Certificate issued by the Tehsildar, Ratlam Page 76 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 declaring that the petitioner belonged to a Scheduled Tribe [Dhangadh]. It had since been complained that the petitioner does not belong to a Scheduled Tribe but she belongs to a caste `Gadariya'. Pursuant to the said complaint, the Bank undertook investigation in respect of the genuineness of the caste cetificate produced by the petitioner. The petitioner apprehending that in view of the said investigation and the communication sent by the District Collector, Ratlam [Madhya Pradesh] the petitioner's service would be terminated has preferred this petition under Article 226 of the Constitution of India.
The petitioner has prayed for a declaration that the Caste Certificate declaring the petitioner as `Dhangadh' [Scheduled Tribe] issued by the Tehsildar, Ratlam is genuine and correct. Pending the petition, the petitioner has prayed that the Bank be restrained from taking any steps against the petitioner either of suspension or termination of the service of the petitioner. As to the declaration that the certificate produced by the petitioner declaring the petitioner to be a Scheduled Tribe person belonging to Dhangadh community is genuine, I must say that this Court has no territorial jurisdiction to grant the said prayer. As recorded hereinabove, the said certificate has been issued by an authority Page 77 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 stationed at Ratlam [Madhya Pradesh]. Besides, the petitioner has availed of the remedy before the Civil Court at Ratlam in the said subject matter. The petitioner has instituted Civil Suit No. 43 of 2003 for a declaration that the certificate dated 5th April, 2003 issued by the District Collector, Ratlam declaring the petitioner to be belonging to "Gadariya" community is illegal and to quash and set- aside the same. Thus, the petitioner having availed of the remedy before the appropriate forum and this Court having no jurisdiction to grant the said relief, the petition is not maintainable. As to the apprehension that the petitioner's service shall be terminated on the basis of the materials collected by the Bank behind the back of the petitioner, the same does not appear to be well- founded. Learned advocate Mr. Tanna has produced copy of the Charge- sheet dated 16th October, 2003 issued upon the petitioner. On perusal of the said charge-sheet and the accompanying documents, it appears that the Bank has initiated regular departmental proceeding with respect to the alleged false information given by the petitioner. The petitioner has also been given all the materials that have been received by the Bank in the subject matter. I am, therefore, of the opinion that there is no reason to believe that the Bank shall terminate the service of the petitioner without any cause or Page 78 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 without following the due procedure of law. In above view of the matter, the petition is devoid of any merit. Neither of the reliefs prayed for by the petitioner can be granted. The petition is dismissed in limine. Notice is discharged. Ad interim relief stands vacated.
Learned advocate Mr. Tanna prays that the ad-interim stay granted on 18th June, 2003 be continued for a period of 15 days. Learned advocate Mr. Parikh opposes the proposition. The request is granted. The ad- interim stay operating pending this petition shall continue to operate till 19th January, 2004. Civil Application No. 9379 of 2003 stands disposed of."
5) Reliance was placed on the decision of the Supreme Court in case of Union of India and another v. Kunisetty Satyanarayana reported in AIR 2007 Supreme Court 906, wherein the Apex Court held that ordinarily the writ petition should not be entertained against a mere show cause notice or charge- sheet because at that stage the writ petition may be held to be premature as under: Page 79 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022
C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 "13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001(10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-
cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
Page 80 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
6. On consideration of the submissions made by the learned advocates for both the sides and on perusal of the material on record following questions arise in the facts of the case:
1) Whether the petition is premature as the petitioner has challenged charge-sheet dated 9.02.2021 in facts of the case?
2) Whether the respondent bank is justified in issuing the charge-sheet dated 9.02.2021 after delay of 13 years from the date of appointment of the petitioner in the year Page 81 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 2007?
3) Whether the Caste Certificate submitted by the petitioner along with her application can be said to be invalid when such Certificates have not been cancelled or declared invalid by Caste Scrutiny Committee?
4) Whether the respondent bank was justified in issuing the charge-sheet though it has carried out multiple verification in the past and upon the satisfaction, the petitioner was confirmed in service and thereafter promoted twice?
5) Whether the respondent bank can rely upon the declaration made by the petitioner to initiate the proceedings when the petitioner has satisfactorily worked with the respondent bank for more than 13 years? Page 82 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022
6) Whether charge-sheet dated 9.2.2021 after withdrawal of earlier charge-sheet dated 30.05.2018 is tenable, more particularly, when the inquiry pursuant to the earlier charge-sheet was complete and inquiry report was awaited?
7) Whether the respondent should be permitted to proceed further with the departmental proceedings causing prejudice to the petitioners, more particularly, when the petitioner has not availed any benefit of "SC" category?
8) Whether the charge-sheet issued by the respondent bank is sustainable in view of the plea taken by the petitioner that she was appointed in General category?
7. The fact with regard to preferring of the application by the petitioner pursuant to Page 83 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 the advertisement issued by respondent bank in 2007 wherein the petitioner has applied in "SC" category is not in dispute. The petitioner has furnished two Caste Certificates, one of "Mochi Community" issued in the year 1994 and second of "Jeengar Community" issued by the State of Rajasthan and the petitioner considered herself has "SC" candidate while making an application of "Jeengar Community" which is "SC" Community of husband of the petitioner at Rajasthan.
8. The charges leveled against the petitioner are to the effect that on the basis of Caste Certificate submitted by the petitioner, petitioner could not have been appointed as "SC" candidate and therefore, the petitioner is not entitled to continue in employment on the basis of the misrepresentation and suppression of the facts of her caste.
Page 84 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022
9. Articles of Charges in terms of Regulation No.6 of Bank of Baroda Officer Employees' (Discipline & Appeal), Regulations 1976 read as under:
"ARTICLES OF CHARGE [In terms of regulation 6 of Bank of Baroda Officer Employees' (Discipline & Appeal) Regulations, 1976) Ms.Chauhan Ranjanben Madanlal, E.C.No.77820, Senior Manager [MMG/S- III), presently posted at Palanpur Branch, Banaskantha Region since 31/08/2019 to till date, has allegedly committed acts of omissions/commissions by submitting two casté certificates at the time of Joining Bank's Service, claiming that she belongs to 'SC category for the purpose of obtaining employment under reserved quota.
Both the caste certificates were not only contradictory but also invalid because the certificate from Rajasthan was not valid In Gujarat and the certificate from Gujarat which if proved, would amount to gross misconduct in terms of Regulation 3 read with Regulation 24 of Bank of Baroda Employees' (Conduct) Regulations, 1976 and contrary to the terms and conditions of the application and attestation form filled in by her.
Page 85 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 Ms. Chauhan is, therefore, charged as under:
(1) She misrepresented and suppressed material facts of her caste from Higher Authorities.
[2] She knowingly and willfully violated the Bank's rules and established procedures.
[3] She committed acts, which were prejudicial to the Interests of the Bank.
(4) She violated the following term of the Application form dated 08/03/2007 tiled by the charge-sheeted employee "I hereby declare that all statements made in this application are true, complete and correct to the best of my knowledge and belief. I understand that in the event of any information on being found false or incorrect at any stage or not satisfying the eligibility criteria according to the requirements of the relative advertisement, my candidature/appointment for the said post is liable to be cancelled/terminated at any stage and if appointed, my services are liable to be terminated. I am willing to serve anywhere in India. I agree that Bank has right to transfer me to any part of the country at its discretion.
I hereby agree that any legal proceedings in respect of any matter or claims or dispute arising out of this application and/or out of said Page 86 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 advertisement can be instituted buy me only in Mumbai.I undertake to abide by all the terms and conditions mentioned in the advertisement displayed on Bank's website/published in Employment News/Rozgar Samachar dated 03/02/2007"
And She violated the following term of the attestation form dated 19/11/2007 filed by the charge-sheeted employee "I certify that the foregoing Information is correct and complete to the best of my knowledge and belief. I am not aware of any circumstances which might impair my fitness for employment in the Bank. I have/will have no objection to the bank making enquiries at any time (immediately in the near future) regarding the statements made by me in the application. In any manner they decide to do so inclusive of Police enquiry into my antecedents".
And Clause 12 of the appointment order dated 15th October, 2007 "In case you belong to schedule caste/Schedule Tribe Category, your appointment on probation and/or your confirmation in bank's Service is provisional and is subject to the Caste/ Tribe certificates being verified through the proper channels and if the verification at any time reveals that your claim to belong to Schedule Caste or Schedule Tribe as the case may be is Page 87 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 false, your service will be terminated forthwith without assigning any further reasons and without prejudice to such further action as may be taken under the provision of Indian Penal Code for production of false certificates". The allegations, upon which the aforesaid articles of charge are based, are set-out in Annexure-B."
10. The allegations upon which the Articles of Charge against the petitioner are based are narrated in the Statement of Allegations served upon the petitioner which reads as under :
"The allegations upon which the Articles of Charge against Ms. Chauhan Ranjanben Madanial, EC.No.77820, Senior Manager[MMG/S-
11. Palanpur Branch, Banaskantha Region, are based as under:-
[1] Bank issued an advertisement dated 03/02/2017 for recruitment as probationary officers in the state of Gujarat.
[2] Ms. Chauhan by her application dated 08/03/2017 applied to be considered for appointment with the Bank as a SC candidate against available 15 posts reserved for the category of SC candidates.
[3] In her application for Recruitment of Probationary Officers- Project 2007, she has mentioned he: Category "SC" and caste as "Jeengar" which is her husband's caste and recognized only in the state of Rajasthan, Page 88 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 and not in the State of Gujarat. However, by birth she belongs to Mochi Community, which was delisted from the list of Schedule Castes vide resolution dated 27/05/2003 in the State of Gujarat. She also submitted a certificate No. 203 dated 07/07/1994 Issued by Social Welfare Officer, Palanpur, Gujarat State classifying her as "Mochi" a schedule Caste candidate, for the purpose of obtaining employment under reserved quota of Schedule Caste candidates.
[4] The IBPS conducted an examination and after the completing the selection procedure, inter alla recommended-Ms. Chauhan as a SC candidate to be considered for appointment in the list of SC candidates in order of merit of the SC candidates and in such a list of SC candidates, she stood at Sr. No. 5.
[5] By Letter dated 30.07.2007 Ms. Chauhan submitted various document under her signature and submitted that her category is said to be "SC" and Caste Certificate was also enclosed.
[6] By Appointment letter dated 15.10.2007 the Bank inter alia stated as under:
Cl. 7 Appointment is provisional Cl. 7 (c) (iv) Provisional subject to Caste Certificate Cl. 12 If at any time your claim to belong to SC etc. is false, your services will be terminated forthwith Cl. 15 Report on 18.11.2007 for verification of documents mentioned in Cl. 7.
Cl. 17 After verification join on 19.11.2007 Page 89 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 [7] On 19.11.2007 Ms. Chauhan Attestation Form filed at the time of joining service where in the opening clause was:
Quote the opening clause of the attestation form In clause Cl. 9 (b) she stated "YES" "SC".
[8] The Bank maintains a Reservation Register (Roster Register), wherein the name Ms. Chauhan is shown at Sr. No. 643 as "SC"
[9] Ms. Chauhan after her Transfer from Deesa to Palanpur, started making grievances against the Regional Manager and one of the complaints was made to Managing Director [10] Zonal Office therefore appointed Ms. Harita Dave, a Lady Liaison officer to inquire into the allegations made by Ms. Chauhan. During an investigation an allegation regarding her not being a "SC" candidate came to light.
[11] Consequently, the Bank appointed Shri K. H. Solanki, Chief Manager and Zonal Liaison officer for SC/ST/PH & Ex-servicemen to look into the allegations of her not being an "SC" person.
[12] On receiving the report dated 11/07/2017, from Shri Solanki Ms. Chauhan was called upon to submit a valid caste certificate since the certificates which were contradictory and invalid, when she was appointed as a "SC" category candidate [13] At the time of appointment in the Bank's service Ms. Chauhan submitted Caste Certificate of her belongs to "Schedule Caste" having No. 203 dated 07/07/1994 issued by Social Welfare Officer, Palanpur, Page 90 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 Gujarat State. In said Caste Certificate her community has been mentioned as "Mochi" which is not recognized as "Schedule Caste" in State of Gujarat [except in District of Dang and Umargam Taluka area of Valsad District) w.e.f. 27/05/2003 as per Government of Gujarat Resolution No.SA SHA/PA/1103/139-A dated 07/07/1994. Ms. Chauhan had submitted Caste Certificate declaring her belongs to Schedule Caste which was issued prior to the date of delisting of "Mochi" community as Schedule Caste.
[14] Ms. Chauhan also submitted Caste Certificate dated 07/12/2005, issued by Tehsildar. Sirohi, Rajasthan belongs to her husband Mr. Pradeep Kumar recognizing him as "Scheduled Caste since he belongs to Jeengar community which is recognized as Scheduled Caste in Rajasthan. However, Caste certificate of her husband submitted. by Ms.Chauhan cannot be considered since Ms. Chauhan belongs to "Mochi" community by birth which is delisted vide resolution dated 27/05/2003 as "Schedule caste in state of Gujarat.
[15] Apparantly Ms. Chauhan submitted aforesaid Caste Certificates declaring her belongs to "Schedule Caste" with a view to fulfill her motive to obtain employment in Bank under Reservation Quota, has submitted above said Caste Certificate and got succeeded at the cost of other equally placed candidates."
11. It is pertinent to note that similar Articles of Charges was issued by the respondent bank on 30.05.2018 and pursuant Page 91 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 thereto, petitioner filed reply and inquiry was conducted by the respondent bank and before the inquiry report could be submitted, the petitioner preferred Special Civil Application No. 19134/2018 and the proceedings were stalled. During the pendency of the writ petition, the respondent bank filed purshish dated 05.01.2021 to the effect that without prejudice to the rights and contentions of the bank, the bank shall withdraw the charge-sheet dated 30.05.2018 and cancel the inquiry pursuant to the said charge-sheet so as to issue fresh charge-
sheet and to initiate fresh inquiry if so required after considering the reply received from the petitioner. Considering the purshish dated 5.01.2021, this Court vide order dated 21.01.2021 disposed of Special Civil Application No.19134/2018 filed by the petitioner with a permission to the petitioner to issue fresh charge-sheet, if Page 92 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 any, and initiate an inquiry if required.
12. In view of such development the impugned charge-sheet dated 9.02.2021 was issued by the respondent bank. The petitioner instead of filing reply to the impugned charge-sheet has again challenged the same reiterating the contentions which were raised in Special Civil Application No. 19134/2018.
13. The respondent bank has issued the impugned charge-sheet almost after 13 years of service of the petitioner raising the issue of entry of the petitioner in respondent bank in "SC" category. A perusal of the Articles of Charges and Statement of Allegations reproduced here-in-above shows that if the same is proved, the service of the petitioner may be terminated. Therefore, it is required to be considered as to whether the respondent bank should be permitted to Page 93 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 proceed further with the charges leveled against the petitioner at this stage or not.
14. The decisions relied upon by the petitioner wherein charge-sheet is quashed either by the Apex Court or by this Court on the ground of delay and laches on part of the employer to take action pertains to different facts of each of the case. Therefore, whether such decisions would have any bearing on the facts of the present case or not is required to be considered.
15. In case of P.V. Mahadevan (supra), charge-memo was issued in the year 2000 for issuing a sale deed in 1990. Inspite of the fact that the record was very much available with the respondent employer, no action was taken for about 10 years and no explanation whatsoever was offered by the respondent Housing Board for inordinate delay in initiating the disciplinary action against Page 94 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 the appellant therein. In such circumstances the Apex Court held that delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and in absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings. Whereas in the facts of the present case, entry of the petitioner in the respondent bank itself is under clout. If it is found that the petitioner has made misrepresentation to get appointment in "SC" category, then the delay in initiating proceedings would not be relevant for the charges leveled against the petitioner.
16. In case of UCO Bank and others (supra), the delinquent employee was charged with issuing a cheque on 25.01.1991 for an amount Page 95 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 of Rs. 3,00,000/- in favour of his brother when he had only about Rs.1000/- in his account. In such facts, the Apex Court held that there is no explanation for unexplained delay of about seven years in issuing the charge-sheet and the time taken by the bank to make up its mind was held to be unreasonable and unacceptable.
17. Similarly in case of K.B.Trivedi (supra), Division Bench of this Court quashed and set aside the departmental inquiry pursuant to the charge-sheet dated 1.6.2000 containing allegations of misconduct which had allegedly taken place 18 years ago.
18. In case of Rajesh Chamanlal Tank(supra), this Court quashed and set aside the charge- memo on the ground of protracted action by the State Government after a gap of 12 years from the time of the incident of causing loss to the department for the alleged conduct on Page 96 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 part of the petitioner. This Court referring to the facts of the case that charge-sheet was issued after a gap of 12 years from the time of the incident alleged and the inquiry officer was not appointed for a period of four years and thereafter, the petitioner retired in the year 2013 and charge-sheet was revised and issued for the second time after the retirement of the petitioner, held that the delay, lethargy and apathy on part of the department was manifest at every stage and inquiry proceedings after such unreasonable and gross delay could not be allowed to sustain against the petitioner, as allowing the inquiry proceedings to proceed after such delay would be harsh, inequitable, arbitrary and against the principle of fairness. However, in the facts of the present case, delay caused by the respondent bank in issuing the impugned charge-sheet would not be of any help to the petitioner because Page 97 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 there is no functional, administrative or behavioural misconduct of the petitioner and if the petitioner has no legal right to enter the employment or to continue to hold the employment, she would not be able to protect her employment on the ground of equity or delay. The appointment of the petitioner with the respondent bank would not be legitimized because of delay caused on part of the respondent bank if it is held that she was not entitled to be appointed.
19. Reliance is placed by the petitioner on the decision of Kumari Madhuri Patil and another (supra), to contend that only Caste Scrutiny Committee can declare the Caste Certificate as invalid or defective. It is not in dispute that respondent bank has not leveled any allegation against the petitioner with regard to correctness of Caste Certificates submitted by the petitioner and Page 98 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 therefore, as held by the Apex Court that the Committee which is empowered to evaluate the evidence placed before it when records a finding of fact, it ought to prevail unless found vitiated by judicial review of any High Court subject to limitations of interference with findings of fact. It was further held that the Committee when considers all the material facts and records a finding, though another view, as a court of appeal may be possible, it is not a ground to reverse the findings. The court has to see whether the Committee considered all the relevant material placed before it or has not applied its mind to relevant facts which have led the Committee ultimately record the finding. In facts of the case, none of the two certificates are in dispute. Charge leveled against the petitioner is with regard to misrepresentation or suppression and not with regard to submission of any fraudulent Page 99 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 certificate and question whether the declaration given by the petitioner in application form dated 8.03.2007 is binding upon her or not if the ultimate finding which may be recorded by the respondent bank against the petitioner of misrepresentation and suppression of her Caste to get the entry in the bank in reserved "SC" category is required to be decided by the respondent bank.
20. In view of the foregoing reasons, contentions raised on behalf of the petitioner on merits of the case are not dealt with so as not to prejudice either the petitioner or the respondent bank with regard to ultimate conclusion which may be arrived at by the respondent bank on completion of the further inquiry proceedings, if any, to be initiated after receipt of the reply to the charge-sheet which may be filed by the Page 100 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 petitioner. Therefore, reliance placed by the respondent bank on the decisions with regard to the merits are also not considered at this stage. Apparently, the petition is premature and the petitioner is required to undergo the inquiry pursuant to the charges leveled against her as the charges prima facie refers to entry of the petitioner in the respondent bank in reserved "SC" category.
21. The petition is therefore, not entertained at this stage as the petitioner is required to file reply to the charge-sheet raising all the contentions including the contentions raised in this petition and the respondent bank is directed to decide such Articles of Charges and Statement of Allegations and to decide whether further inquiry is required in the matter or not after considering the reply and after giving an opportunity of hearing to the petitioner Page 101 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022 C/SCA/4488/2021 CAV JUDGMENT DATED: 02/09/2022 in accordance with law without being influenced and ignoring the earlier inquiry proceedings initiated by the respondent no.2 bank in the year 2018. Such exercise shall be completed within a period of 12 weeks from the date of receipt of this order.
22. Rule is discharged. No order as to costs.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 102 of 102 Downloaded on : Sat Sep 03 20:24:06 IST 2022