Central Administrative Tribunal - Hyderabad
Shri P. Sathaiah S/O Shri Venkataiah vs South Central Railway Represented ... on 6 August, 2007
ORDER
M. Jayaraman, Member (Admn.)
1. Heard Shri S. Lakshma Reddy, learned Counsel for the applicant and Shri M.C. Jacob, learned standing counsel for the respondents.
2. The applicant has filed the subject OA with a prayer that the Hon'ble Tribunal may call for the records relevant to the impugned notice of termination dated 13.3.2007 and quash the same as illegal.
3. The brief facts here are that the applicant was appointed as Yard Porter on 7.1.1985 in Railways against the Scheduled Tribe vacancy. The applicant had produced the caste certificate issued by the Tahsildar, Narsampet vide certificate dated 12.10.1981. Subsequently, he got promoted as Pointsman 'B' in the year 1990 and Assistant Guard in 1992 in which post he is working. By letter dated 14.10.2005, the 2nd respondent asked the applicant to submit the original caste certificate as they have received a complaint to say that it was a bogus caste certificate. The applicant submitted reply dated 28.10.2005 stating that he was appointed in 1985 and the original certificates were submitted to the respondents at that time which was also entered into the service records. Thereafter, the respondents issued the impugned notice of termination dated 13.3.2007 served on him on 17.4.2007 stating that the District Collector got verified the genuineness of the certificate issued by the Tahsildar, Narsampet through the M.R.O., Narsampet as per records of 1981 and further he reported by proceedings dated 17.12.2006 that the said certificate appears to be bogus. Accordingly, the respondents have stated in the impugned notice that the applicant's appointment is void and his services were liable to be terminated. The present OA has been filed challenging the above notice.
4. The main ground on which the applicant has filed this OA is that the respondents have no jurisdiction to issue the impugned orders as long as the certificate issued by the competent authority has not been cancelled under the provisions of the A.P. (SC, ST & BCs) Regulation of Issue of Community Certificates Act, 1993 and Rules, 1997, in the light of the Judgment of the Hon'ble Supreme Court reported in 1997 (7) SCC 505 and A.P. High Court Judgment reported in 1999 (3) ALD 581 and therefore, the impugned notice is illegal, according to the applicant. Further, the report said to have been issued by the District Collector on 17.12.2006 is not a report under Act 16 above and rules made thereunder and no notice was issued nor opportunity was given to him. Thus, in his view, the report is nullity in the eye of law. He has, therefore, prayed for quashing the said notice.
5. The respondents have opposed the contentions made by the applicant as above and they have filed a detailed reply statement wherein they have stated that the applicant was appointed in Railways against ST post based on the caste certificate submitted by him at he time of appointment and he has been given further promotions based on the certificate and based on the reservation meant for STs. The office of the General Manager received a complaint from the Divisional Secretary, All India Scheduled Caste & Tribes Railway Employees Association of Hyderabad Division regarding bogus nature of the caste certificate submitted by the applicant. Accordingly, the applicant was asked to submit original caste certificate to enable the office to process further. The applicant, however, informed that he has already submitted the caste certificate at the time of appointment and he submitted a copy of the same vide Annexure R-III to the reply. Accordingly, the respondents addressed the District Collector, Warangal on 30.1.2006 requesting the said authority to verify the genuineness of the ST caste certificate issued to the applicant at the earliest. A reminder was issued on 25.8.2006. By proceedings dated 7.12.2006 (Annexure R-VI to the reply), the District Collector, Warangal informed the respondents that the MRO, Narsampet who inquired into the case has reported that no person by name P. Sattaiah is residing in Narsampet Village. Further, it was also stated that as per office records of 1981, no such caste certificate was issued from that office to Shri P. Sattaiah and the certificate in question appears to be bogus. Accordingly, a show cause notice dated 13.3.2007 was issued directing the applicant to submit representation, if any, against the said notice within a period of two weeks. In the notice, the observations of the District Collector, Warangal in regard to the certificate produced by him were reiterated granting opportunity to the applicant in this regard. However, the applicant has not filed any representation but has filed the present OA in which the Hon'ble Tribunal had granted an interim order of status quo on 25.4.2007. The respondents have further stated that since it is clear from the District Collector's letter that the certificate issued is not from the office of the competent authority, cancellation under the due process is not applicable and it is for the applicant to contest the said findings of the authorities at the appropriate forum. The respondents have further stated that as per the directions of the Hon'ble Supreme Court in the case of Shri R. Vishwanathan Pillai v. State of Kerala AIR 2004 SC 1496 equivalent to , there is no illegality or irregularity in issuing the impugned proceedings since the initial appointment based on the false caste certificate was no appointment in the eye of law. In this connection, the respondents have referred to the Serial Circular No. 69/97 dated 15.4.1997 issued by the Railway Board wherein it is clearly stated that where it is found that a person who secured employment in Railways on the basis of bogus caste certificate, he should not only be dismissed from service but penal action should also be initiated in a court of law. Accordingly, the respondents have prayed for dismissal of the OA.
6. We have given our careful consideration to the facts of the case. We have also perused the records and given due consideration to the averments made at the time of hearing. The main point taken by the learned Counsel for the applicant in this case is that the applicant has not been given opportunity before issue of the impugned proceedings dated 7.12.2006 by the Collector, Warangal nor was any regular inquiry conducted as contemplated under the provisions of the Act 16 of of the A.P. (SC, ST & BCs) Regulation of Issue of Community Certificates Act, 1993 and Rules, 1997 made thereunder and so the respondents cannot act on the basis of such proceedings. On the other hand, the respondents have relied on this letter dated 7.12.2006 as also the Railway Board's circular and the Hon'ble Supreme Court's judgment referred to above. In addition, the respondents have also relied on the Hon'ble Supreme Court's judgment in the case of Air lndia Ltd. v. M. Yogeshwar Raj to press the point that the Tribunal ought not to interfere at this stage nor issue any interim order making any observation since the disciplinary authority was yet to finally decide the issue involved and to make up its mind against the applicant's guilt.
7. We find from the Serial Circular No. 69/97 that the Railway Board has given clear instructions as to what action should be taken in the case of a Railway servant who secured Railway employment on the basis of a false caste certificate. The said circular is reproduced below:
Serial Clircular No. 69/97Circular Letter No. P(R)227/XII dt. 15.4.1997 Copy of Board's letter No. 78-E(SCT) 15/29 dated 28.6.96 is published herewith for information, guidance and necessary action. Board's letter quoted therein were circulars as under:
Board's letter dated S.C. No.
12.7.78 122/78 dt. 25.7.78
27.6.95 enclosed.
Copy of Board's letter No. 78-E (SCT) 15/29 dated 28.6.96
Sub : Penal action against those Railway Servants who secured Railway employment on the basis of false caste/tribe Certificate belonging to SC/ST.
The parliamentary Committee on the Welfare of Scheduled Castes and Scheduled Tribes, in their Thirty-Ninth Report recommended vide para 3.20 as under:
The Committee recommended that persons found serving Northern Railway on the basis of bogus caste certificates should not only be dismissed from service but their cases should also be referred to the local police and the concerned District Magistrates for initiating penal action against them so that such people are discouraged once and for all to make employment in any other organization with the help of false caste certificates.
2. The Ministry of Railways (Railway Board) have considered the above recommendations carefully and accepted the same.
3. In this connection, attention is invited to earlier Board's letter No. 78-E(SCT)/15/29 dated 12.7.1978 under which a provision has been made for termination of services in case it is established that the railway service had been secured on the basis of false caste/tribe certificate. Similar instructions were communicated in regard to OBC's also vide letter No. 90-E(SCT)1/71/1 dated 27.6.1995 vide which Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training's) O.M. No. 36033/9/95-Estt.(SCT), dated 10.5.95 enclosed which also lays down in case of OBC certificate found false, besides, terminating the services, further action may be taken under the provisions of Indian Penal Code for production of false certificate.
4. Keeping in view the spirit of Constitutional provisions that the benefits may accrue to genuine SCs/STs, therefore, on detection/confirmation if it is found that a person who has secured employment in Railways on the basis of bogus caste certificate, he should not only be dismissed form service but action should also be initiated by referring the case to the local police station under the relevant provisions of Indian Penal Code as well as advising the District magistrate of the concerned District from which the false certificate was got issued for initiating penal action against the concerned persons as well as others who were involved in the issue of bogus certificate so that such people are discouraged once and for all to take employment in other organization with the help of false caste certificate.
8. It is clear from the above that where the Railway authorities have found that any one has obtained employment by producing a false caste certificate, suitable action should be taken as mentioned therein. Coming to the subject case, the respondents had to act the way they have done on receipt of the complaint regarding the genuineness of the caste certificate produced by the applicant. Accordingly, they have referred the matter to the District Collector for verification and the District collector has replied vide proceedings dated 7.12.2006 which is reproduced below:
Office of the Collector, Warangal.
Rc. No. C5/587/2006 Dated 07.12.2006
From:
Sri Syed Omer Jaleel, I.A.S.,
I/C Collector, Warangal.
To
The Divisional Railway Manager,
Personnel Branch,
Hyderabad Division,
Secunderabad.
Sir,
Sub : Verification of social status of Sri P. Sathaiah, S/o Venkatiah R/o
Narsampet Inquiry report Reg.
Ref : 1. Divnl. Rly. Manager Hyd. Divn. Secunderabad
Lr. No. YP/RESN/171/HYD at Dtd. 30.01.2006.
2. MRO, Narsampet Lr. No. F/270/2006, Dtd : 30.11.2006.
******
I invite attention to the references cited and inform that the MRO, Narsampet, who Enquired into the case has reported that no person by name P. Sathaiah is residing in Narsampet (v).
As per his office record of 1981 no such caste certificate was issued from his office to P. Sathaiah and the certificate in question is appears to be Bogus.
This is for favour of information.
// f.b.o. // Yours faithfully, Sd/- Sd/- P. Vittal Superintendent for Collector, Warangal. (Tahsildar Cadre)
9. From the above, it is clear that the Collector, Warangal has clarified that the matter was inquired into by the MRO who has reported that as per the office record of 1981, no such caste certificate was issued from his office to Shri P. Sathaiah. In these circumstances, the respondents have correctly acted and issued the impugned notice for termination of the services in respect of the applicant.
10. The applicant has questioned the validity of the inquiry conducted by the District Collector saying that it was not in terms of the provisions of A.P. (SC, ST & BCs) Regulation of Issue of Community Certificates Act, 1993 and Rules, 1997 made thereunder. From the letter of the District Collector, it is clear that no such certificate was issued to the applicant as per the office records of 1981. It is up to the applicant to take up the matter with the District Collector, Warangal and produce evidence as to how the certificate was genuine.
11. The further contention of the applicant is that in terms of the Judgment of the Hon'ble Supreme Court as also the Hon'ble High Court of Andhra Pradesh, unless a certificate is cancelled, the same will hold good. In our view, this contention is also not acceptable because in the said cases, there was no dispute that certificate was issued by the authority mentioned therein. In the present case, the District Collector, Warangal have clearly stated that no such certificate was issued. In other words, the certificate seems to be bogus right from the day one. Therefore, there is no question of claiming that it is valid until it is cancelled. Again, the District Collector cannot be expected to cancel the certificate which they never issued.
12. In the light of the above discussions and in view of the Hon'ble Supreme Court's judgment cited by the respondents in Shri R. Vishwanathan Pillai's case (supra), wherein it was held that where a person secures appointment in the post meant for the reserved category candidates on the basis of a false caste certificate, he is not a person holding a civil post within the meaning of Article 311 of the Constitution and such appointment shall be held to be no appointment in the eye of the law. Therefore, the Hon'ble Supreme Court held that dismissal of a person so appointed would not attract Article 311.
13. Accordingly, we do not find any thing wrong with the impugned notice dated 13.3.2007 issued by the respondents to the applicant asking him to make representation wherein an opportunity has been given to the applicant to make a representation against the proposed termination. It is up to the applicant to avail of this opportunity. We, therefore, do not find any substance in the OA which is liable to be dismissed.
14. However, we find that the impugned notice gave a time of two weeks from the date of issue of that notice and without making any representation to the respondents the applicant has directly come before the Hon'ble Tribunal. Accordingly, the time spent in filing of this OA and its disposal is not to be counted and the Tribunal grants liberty to the applicant to make his representation, if any, to the impugned notice of termination to the respondents within two weeks from the date of receipt of this order in this OA whereupon the respondents may consider the same before taking any final decision in the matter.
15. In the light of the above discussions, the OA is dismissed with no order as to costs.