Madras High Court
M. Ponnambalam vs The District Collector, ... on 12 October, 2001
Equivalent citations: (2002)1MLJ411
Author: A.K. Rajan
Bench: A.K. Rajan
ORDER
A.K. Rajan, J,
1. 1. This writ appeal is against the order of dismissal of W.P. No. 4329 of 1988, dated 26.2.1997. The writ petition was filed to quash the order of the first respondent in RC.M2/60313/87, dated 1.2.1988.
2. The case of the appellant is that he belongs to "Konda Reddy" community which is included in the list of Scheduled Tribe, under the Constitution (Scheduled Tribe) Order, 1950 passed by the President of India exercising the powers conferred under Article 342 of the Constitution of India. The appellant applied for grant of community certificate in the year 1977. The Tahsildar after due consideration issued the community certificate on 5.11.1977 that the appellant belongs to "Konda Reddy" community. Thereafter, through employment exchange, he appeared for the interview for the post of Assistant/Typist in the third respondent insurance company in the year 1978 and was selected; he was appointed as Assistant/Typist in Tiruchirapalli branch of the third respondent. By order dated 29.6.1979, he was confirmed in the services. While so, suddenly on 12.6.1987, he received a show cause notice from the first respondent as to why his community certificate should not be cancelled. From the notice, it is seen that the first respondent has come to the conclusion that the appellant does not belong to "Konda Reddy" community on the basis of the discreet enquiry conducted by the second respondent, the entries found in the S.S.L.C. book, and the statement of the villagers.
3. The case of the appellant is that the discreet enquiry conducted by the respondents 1 and 2 is not valid and it should have been conducted after giving prior notice to the appellant and also while recording the statement from the villagers, notice should have been given to the appellant and only in his presence, such statements should have been recorded. Therefore, the manner in which the discreet enquiry was conducted is invalid and therefore, the statements recorded in that process cannot be relied upon to decide that the appellant does not belong to "Konda Reddy" community and to cancel the certificate issued already. Learned single Judge dismissed the writ petition holding that the contention of the learned counsel for the appellant that the enquiry report was not communicated to the appellant is not acceptable. Learned single Judge has also stated that there is no need under law to supply the copy of the enquiry report to the appellant in the case of discreet enquiry. Against that order of dismissal, this writ appeal has been filed.
4. Learned counsel appearing for the appellant argued that even in the case of discreet enquiry, the authority should have furnished the copy of the enquiry report; also the statement of the villagers should not have been recorded in the appellant's absence, and without giving prior intimation to him; hence the discreet enquiry is vitiated.
5. In support of the above contention, the learned counsel for the appellant relied upon the decision reported in C. Baskaran v. The District Collector, Trichy, 1997 W.L.R. 33, wherein the Division Bench of this Court held as follows:
The grievance of the petitioner/appellant is that the Collector had held a discreet enquiry and on the basis of that, has recorded a finding that the petitioner does not belong to Konda Reddy community. Copies of the statements recorded and the copies of documents collected during the course of the discreet enquiry were not made available to the petitioner. No doubt, the District Collector has heard the petitioner and he has filed his objections' explanation. But, a reading of the order of the District Collector reveals that his conclusion is based upon the result of the discreet enquiry, copies of which had not been furnished to the petitioner. Thus, there is breach of principles of natural justice.
The learned counsel further argued that in a decision reported in Guitar Singh v. Sub-Divisional Magistrate, , it has been held, It is clear from the facts on record that prior to the cancellation of the Scheduled Caste certificate by the impugned order dated 3.6.1997, no show cause notice was issued to the appellant. It cannot be denied that with the issuance of the Scheduled Caste certificate, certain rights accrued to the appellant.
In State of Maharashtra v. Milind and Ors., 2000 (1) S.C.C 4, the Supreme Court has held that relying upon School Leaving Certificate as conclusive proof of the community is unconstitutional and was contrary to the decision of the Supreme Court in State of Maharashtra v. Abhay and Ors., 1984 Supp SCC 701. In an unreported judgment rendered in W.A. No. 1020 of 1999, dated 12.7.2000, the Division Bench of this Court held, "The first respondent is directed to furnish the copy of the report of the second respondent herein to the appellant herein thereby giving an opportunity to the appellant for filing his objections and to adduce evidence. If any and then, the first respondent shall decide the matter, after hearing the writ petitioner/appellant herein as to whether he belongs to Konda Reddy community or not. In the event of holding (hat the appellant does not belong to Konda Reddy community, the District Collector shall cancel the community certificate issued to the appellant and intimate the same to the third respondent."
The learned counsel for the appellant relied upon another decision in R. A. No. 104 of 1999 in W.A. No.887 of 1999, dated 4.2.2000 wherein it was held that, "It is needless to add that any enquiry that may be conducted either by the respondents, 1 or 2 shall be conducted in the presence of the petitioner and the petitioner shall be allowed to cross examine those witnesses whose statements are recorded. It is further directed that the report of the Inquiry Officer with a notice shall be served on the writ petitioner by the District Collector before holding a personal inquiry in the matter and decided the issue thereafter on merits and according to law by following the earlier pronouncements of this Court referred to above."
The learned counsel also relied upon an order passed by the Supreme Court in S.L.P. No. 16481 of 1996 wherein the Supreme Court directed that an enquiry be conducted by the Collector. The learned counsel argued that in this case also, the impugned order should be quashed and the Collector should be directed to conduct enquiry again in the presence of the' appellant and only thereafter, a valid conclusion can be arrived at and hence prayed that the writ appeal be allowed.
6. Taking into consideration of all the above decisions of the High Courts and the Supreme Court, it is seen that in the case reported in Gulzar Singh v. Sub-Divisional Magistrate, , the Supreme Court has held as follows:
"If this certificate was to be cancelled on the basis of some enquiry which had been conducted by the department, it was incumbent on the department, keeping in view the principles of natural justice, to issue a show cause notice to the appellant requiring him to explain as to why the Scheduled Caste certificate which had been issued should not be cancelled. If there were statements of other persons which were recorded, as seem to have been done in the present case, on the basis of which the department came to the conclusion that the appellant was not a Majhbi Sikh by caste but was a Christian, then fairness would require that the said statements should be put to the appellant before a final decision is taken.
Therefore, in cases where discreet enquiries are conducted and statements were recorded from various persons, the view of the Supreme Court is that, fairness would require that the statements should be put to the appellant before final decision is taken. It does not mean that statements should be recorded in the presence of the person aggrieved and the principles of natural justice would he satisfied, if copies of the statements are put on notice to the employee before the final decision is taken. Of course, it is open to the employee concerned to pray for cross-examination of the persons who gave statements against him, but, on the facts of the case, it is not established that the appellant has prayed for such an opportunity to cross-examine the persons who gave statements which was denied to him. Further, the Supreme Court in the case reported in S. Nagarajan v. The District Collector, Salem and Ors., 1997 (2) Supreme 116, referred to an earlier decision reported in Madhuri Patil v. Additional Commissioner Tribal Development, with approval and held that, "High Court is not a Court of appeal to appreciate the evidence.".......
"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 recorded the finding...."
The decision of the Division Bench in W.A. No. 1020 of 1999 was a case where the appellant was not given any opportunity before cancelling the certificate. Therefore, the Collector was directed to conduct another enquiry, in this ease, in the counter it is stated, "that a notice was issued to the appellant directing him to snow cause as to why the community certificate issued by the Tahsildar, Turaiyur should not be cancelled. The petitioner was given due opportunity, and a personal hearing and furnishing him the report of the second respondent at his request and permitting him time to give a further explanation. The first respondent passed the impugned order alter a proper consideration of the petitioner's explanation and documentary evidence produced by him and held that the community certificate issued by the Tahsildar; Turaiyur dated 5.11.1977 was a false one and the same was ordered to be cancelled..."
As per the decision in Gulzar Singh v. Sub-Divisional Magistrate , fairness would require that the statement should be put to the appellant before a final decision is taken. Admittedly, in this case, the appellant was put on notice about the statement recorded during the discreet enquiry; He was also given the opportunity to furnish further-evidence to prove his case that he belonged to Scheduled Tribe community. The impugned order of the Collector reveals that the appellant participated in the enquiry conducted by the Collector and on the basis of the totality of evidence available on record, the Collector has come to the conclusion that the appellant does not belong to "Konda Reddy" community. The Collector has also come to the conclusion that the appellant belongs to the "Reddiar" caste which is a Forward Community. The District Collector also relies for corroboration upon the first page of the S.S.L.C. book where, in the column, Whether he belongs to B.C. , S .C. , or ST. , it has been stated as "No"; That is, S.S.L.C. book was not the only basis for the Collector's conclusion. Therefore, it cannot be said that any of principles of natural justice has been violated in this case. We are of the opinion that the Collector has complied with all the formalities. Hence, there is no infirmity in the Collector's orders.
7. The Supreme Court in the decision reported in S. Nagarajan v. District Collector, Salem, , has held that, "It is obvious that the Constitution intended to give benefit of social and economic advancement and empowerment and social equality of status and dignity of person, by providing reservation in services of the State and in education by operation or Articles 15, 16 and 14 of the Constitution and that, therefore, only the persons who are members of Scheduled Tribes and Scheduled Castes alone are entitled to the benefit."
That is, these beneficial provisions are made for the advancement of S.C. & S.Ts. only. That cannot be allowed to be concerned by persons who do not actually belong to those communities. Therefore, the State is expected to see that the ultimate beneficiaries are persons of S.C. & ST. communities. Therefore, the District Collector has only discharged his duty when he cancelled the certificate issued wrongly by the authorities.
8. Counsel for the appellant relying upon the decision reported in State of Maharashtra v. Milind and Ors., 2000 (1) S.C.C .4, requested this Court at least to mould the relief to the appellant. He submitted that the Supreme Court even though did not accept the contention or the appellant, allowed the appellant, in that case, to continue in the appointment that was already made and therefore- a similar order may be passed so as not to disturb the appointment of the appellant. In that case, a student joined M.B.B.S. course and became a doctor. The Supreme Court took the view, that if any action is taken against the appellant in that case it would deprive the services of a doctor on whom public money has already been spent and it did not want to set aside a degree conferred upon him. But, it did prevent any further advantage for any other constitutional purpose. In this case within one year after the date of appointment, the certificate has been cancelled and thereafter, the appellant herein has successfully dragged on the matter before the Courts of Law. In fact, the appellant had usurped the chances of a real S.C./S.T. candidate. Therefore, he cannot claim any advantage on the basis of the number of years, since he joined service.
9. Therefore, we are of the opinion that there is no reason warranting interference with the finding of the learned single Judge and hence, the writ appeal is dismissed. No cost. Consequently, C.M.P. No. 3735 of 1997 is dismissed.