Madras High Court
The New India Assurance Co. Ltd., Rep. By ... vs R. Venkataraman, R. Kalyanasundaram, ... on 23 November, 2004
Equivalent citations: (2005)1MLJ72
Author: D. Murugesan
Bench: N. Dhinakar, D. Murugesan
JUDGMENT D. Murugesan, J.
1. This writ appeal is directed against the order of the learned single Judge dated 22.09.2004. The brief facts regarding the present controversy are summarized as under:
2. The appellant is the New India Assurance Company Limited, hereinafter referred to as 'appellant-company'. The first respondent was issued with a community certificate dated 08.03.1979 by the Tahsildar, Madurai North Taluk, certifying him to belong to 'Kammara community', which is recognised as Scheduled Tribe under the 'Scheduled Castes and Scheduled Tribes (Lists) Modification Order, 1956'. Based on the community certificate, he applied for the post of 'Typist' in the appellant-company as against the vacancies earmarked for ST candidates.
3. On being satisfied with the certificate as to the community of the first respondent he was appointed as typist on 06.06.1979 and was posted at Dindigul. Thereafter he was posted as 'Assistant' on conversion of the post and transferred from Dindigul to Madurai in the year 1984. He was also promoted as 'Senior Assistant' in September 1986 and posted at Theni. Thereafter, he was transferred to Madurai office in the year 1996.
4. During the year 1999, the appellant-company called for applications from among its employees for selection to the post of 'Assistant Administrative Officer', which is a promotional post. In response to the said notification calling for applications, the first respondent applied for promotion as against the vacancies reserved for Scheduled Tribe. He was called for an interview during January 2000. At the time of interview, he was directed to produce the latest Permanent Community Card issued by the Revenue Divisional Officer and for the said purpose he was granted six months' time. As the first respondent could not produce such a certificate, an enquiry was initiated by the appellant-company and after verification of the school and college records, a show cause notice dated 19.03.2001 was issued to the first respondent seeking for an explanation as to why disciplinary proceedings cannot be taken against him under Rule 4(4) of General Insurance (Conduct, Discipline and Appeal) Rules, 1975, (hereinafter referred to as 'the Rules') for having secured an employment by producing false community certificate. Though the first respondent denied the same, an enquiry was conducted and ultimately, by order dated 10.04.2003 he was removed from service in exercise of power under Rule 23(G) of the Rules. Questioning the same, the first respondent filed the writ petition.
5. The learned single Judge, on considering the fact that the power to consider the genuinity of the community certificate cannot be gone into by the appellant-company as it is only the Scrutiny Committee that has got powers to go into such a question. Having found so, the learned single Judge allowed the writ petition. It is this order, that is questioned in this appeal by the appellant-company.
6. Mr.P.Sukumar, learned counsel for the appellant-company would submit that inasmuch as the first respondent has admitted that he did not belong to the Scheduled Tribe, when he was asked at the time of promotion, the appellant-company is empowered to proceed with the disciplinary proceedings for having secured an employment with the help of the bogus certificate. In the circumstances, the disciplinary proceedings and the consequential official order of removal are perfectly justified.
7. To support the said submission, learned counsel would rely on the judgment of the Supreme Court in the case of Air India Ltd. v. M. Yogeshwar Raj, AIR 2000 SC 1681.
8. Mr.K.Alagirisamy, learned senior counsel appearing for the first respondent on caveat, would submit that the appellant-company cannot go into the genuineness of the community certificate as it is outside the purview of the powers of the appellant-company. The community certificate issued on 08.03.1979 by the Tahsildar, has not so far been cancelled in the manner known to law. In the circumstances, by placing reliance on a letter of the first respondent that he is not interested in promotion as against the vacancies earmarked for Scheduled Tribes, disciplinary proceedings cannot be initiated. In fact, he would submit that the said letter is disputed by the first respondent as it was obtained by coercion at the instance of the association which laid a complaint to the appellant-company complaining that the first respondent does not belong to the Scheduled Tribe.
9. To support the said submission, the learned senior counsel relied on the judgment of a Division Bench of this Court in the case of S.P. Sakthi Devi v. The Collector of Salem, Salem, 1984 WLR 535, and a judgment of a learned single Judge of this Court in the case of M.Ramamurthy v. State of Tamil Nadu, 1999 WLR 8.
10. We have carefully considered the above submissions. The only question that falls for our consideration is as to whether the appellant-company, namely, the employer would be entitled to go into the genuineness of the community certificate issued by the Revenue Authorities, more particularly, after the judgment of the Supreme Court in the case of Madhuri Patil v. Additional Commissioner, Tribal Development, ,
11. Community certificates certifying that the applicants belong to certain community are issued by the Tahsildar having jurisdiction over the area in which the applicants reside. By G.O. Ms. No. 2137 Adi Dravidar and Tribal Welfare Department dated 11.11.1989, the Government directed the issue of such community certificates certifying that the applicants belong to Scheduled Tribes shall be done only by the Revenue Divisional Officer having jurisdiction. In the said Government Order, the Government also directed that the certificates issued prior to the said date by the Tahsildars were valid unless they are cancelled in the manner known to law.
12. The first respondent was issued with the community certificate on 08.03.1979 by the Tahsildar, Madurai North Taluk as per the power conferred by the said Government Order. The said community certificate is valid for all purposes, so long as the same is not cancelled in the manner known to law.
13. The question as to the authority to consider the genuineness of the community certificate came up for consideration before the Apex Court in the case of Madhuri Patil v. Additional Commissioner, Tribal Development, . After considering the various aspects, ultimately, the Supreme Court directed as follows:
"The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily have the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinized at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of a social status certificates, their scrutiny and their approval, which may be the following:
1. The application for grant of social status certificate shall be made to the Revenue Sub Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such Officer rather than at the Officer, Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the concerned Directorate.
3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.
All the State Governments shall constitute a Committee of three officers, namely, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the concerned department, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.
5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He also should examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies, etc., by the concerned castes or tribes or tribal communities, etc.
6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or "doubtful" or spurious or falsely or wrongly claimed, the Director concerned should issue show cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgment due or through the head of the concerned educational institution in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the Committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.
7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event, the same procedure as is envisaged in para 6 be followed.
8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.
9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.
10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.
11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.
12. No suit or other proceedings before any other authority should lie.
13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/Miscellaneous petition/matter is disposed of by a single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.
14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian, the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or the Parliament.
15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the concerned educational institution or the appointing authority by registered post with acknowledgment due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate for further study or continue in office in a post."
14. As directed by the apex Court, the genuineness of the community certificate issued to the persons should be considered only by a three member committee comprising of -- (i) an Additional or Joint Secretary or any officer higher in rank of the Director of the concerned department, (ii) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.
15. The above law is well settled in so far as the restriction imposed even on the revenue officials to go into the genuineness of the community certificate as they can only forward any complaint to the Government with a request for consideration by the Committee, constituted as directed in the judgment of Madhuri Patil's case, and the power to go into the genuineness of the same is not conferred either on the Revenue Divisional Officer or on the District Collector even.
16. After the judgment of the Supreme Court in Madhuri Patil's case, the right of the revenue officials to consider the genuineness of the community certificate was taken away, and therefore, it cannot be at any stretch of imagination accepted that the employer or the management would exercise such a power by way of initiating disciplinary proceedings by themselves.
17. This issue is also not res integra as we are in complete agreement with the judgment of the Division Bench of this Court reported in S.P.Sakthi Devi v. The Collector of Salem, Salem, 1984 WLR 535, referred to supra, wherein this Court, after considering the right of an employer initiating disciplinary proceedings on the basis of the false community certificate produced by the employee to secure employment, has held as follows :
"1. A Caste/Community certificate issued by an empowered public authority under seal continues to be a valid document till it is cancelled by the said authority or by his superior authority.
2. Their contents are to be treated as correct and every public authority, undertakings, bodies, institutions, etc., which are bound by instructions relating to such certificates, are bound to act upon them, so long as they are not cancelled.
3. In no disciplinary proceedings, their genuineness or correctness of their contents can be gone into. It is open to the department or employer or organisation, to ask the issuing authority or District Collector, as the case may be, to verify whether the certificate as issued could be still valid, on materials which have since come to their knowledge. They can appear in the verification enquiry and place the materials.
4. If the certificate is cancelled, then disciplinary proceedings can be initiated for having furnished false information.
5. Appointing authorities have the right to verify the genuineness of the certificates by approaching the District Magistrate - Collector of the District or such other constituted authority and once the report is received that the certificate is genuine, thereafter the certificate holder cannot be further harassed to prove his caste/community in any other manner.
6. In causing verification, the Collector is bound to follow the procedure laid down in letter dated 7th July 1983 of Government of Tamil Nadu.
7. In view of what is stated in Chapter 19 of Brochure on Reservation for Scheduled Castes and Scheduled Tribes, in services, 6th edition (1982), the instructions issued by the Central Government from time to time relating to Scheduled Castes and Scheduled Tribes, pertaining to issue of caste certificates are binding upon public sector undertakings, statutory and semi-Government bodies and voluntary agencies receiving grant-in-aid from the Central Government, as provided therein."
18. The Division Bench has specifically laid down that when the genuineness or correctness of the contents of the community certificate cannot be gone into, the only right that vests in the department or the employer or organisation is only to ask the authority concerned to verify the certificate obtained by the employee is still valid and if a report is received that the said certificate was not valid, then to proceed accordingly.
19. In fact, as per the judgment of the apex Court in Madhuri Patil's case, on receipt of the order of the scrutiny committee holding that the certificate was invalid, there need not be further disciplinary proceedings initiated against the said employee as the employer, organisation or department is entitled to immediately take action without reference to any further disciplinary proceedings.
20. In the light of the above findings, the submission of the learned counsel for the appellant-company Mr.P.Sukumar as to the admission of the first respondent that he did not belong to Scheduled Tribe should be considered.
21. In this context, our attention was drawn by Mr.K.Alagirisamy, learned Senior Counsel to the fact that the said letter withdrawing the request for promotion, by the first respondent was made at the instance of an association in a coercive manner. The first respondent was appointed, as we have noted above, on 06.06.1979 and he was not only transferred to various branches of the appellant-company, but also promoted as Senior Assistant in the year 1986. His services were not disturbed till the impugned orders were passed in the year 2003. Pursuant to the notification calling for applications for selection to the post of Assistant Administrative Officer, which is a promotional post, the first respondent had also applied. During the course of interview, he was asked to produce a fresh community certificate. So long as the community certificate issued on 08.03.1979 by the authority competent to issue was not cancelled, insistence of fresh community certificate, that too, at the time of consideration of promotion is totally unsustainable. The admission of the first respondent that he did not belong to Scheduled Tribe should be considered with reference to this aspect as well. When the first respondent got appointment in the year 1979 and was promoted in the year 1986 only based on the Community certificate to the effect that he belonged to Scheduled Tribe, we find it difficult to accept the stand of the appellant-company in placing reliance on the admission of the first respondent that he did not belong to Scheduled Tribe, which according to the learned senior counsel, was obtained by coercion.
22. The judgment of the apex Court relied upon by the learned counsel for the appellant in Air India's case, has got to be distinguished on the ground that in the said judgment, the Supreme Court has taken into consideration the fact that the employee therein secured an employment on 04.10.1998 on production of a certificate which was found to be bogus and the disciplinary proceedings were initiated on 29.12.1998, i.e., within a period of two months and 15 days from the date of appointment.
23. On the facts of the case on hand, though the first respondent was appointed in the year 1979, a disciplinary proceedings was initiated only in the year 2001, and that too when the first respondent was insisted to produce a fresh community certificate for being promoted to a promotional post - Assistant Administrative Officer. The relevant paragraph in the above judgment reads thus:
"Here the disciplinary proceedings were initiated against the respondent because of the production of a bogus certificate dated 04.10.1998. The disciplinary proceedings were initiated on 29.12.1998. There was no delay. Besides the respondent participated in the enquiry without protest."
24. In the circumstances, we are of the considered view that the judgment in the case of Air India, relied on by the learned counsel for the appellant is not applicable to the facts of this case.
25. Mr.K.Alagirisamy, learned senior counsel had also brought to our notice the communication from the appellant-company dated 12.02.2002 addressed to the first respondent advising him to appear before the Revenue Divisional Officer for enquiry as to the verification of the community certificate. From the said communication, we are able to find that the proceedings regarding genuineness of the community certificate had already been initiated by the authorities concerned and in the circumstances, the appellant-company ought to have waited for the final report of the committee.
26. In the circumstances, we do not find any merit in the appeal. The writ appeal is dismissed. No costs. Consequently, WAMP. No. 7461 of 2004 is dismissed.
27. It is made clear that the appellant-company is entitled to proceed in the matter, in the event of the community certificate issued to the first respondent is cancelled by the committee constituted in accordance with the directions given in Madhuri Patil's case.