Madras High Court
R.Balagunaseelan vs The Chairman on 4 August, 2017
Author: R.Mahadevan
Bench: R.Mahadevan
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on Delivered on
29.03.2019 24.04.2019
CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
W.P.(MD)Nos.19892 to 19895 of 2018
and
W.M.P.(MD)Nos.17680 and 17681 of 2018
W.P.(MD)No.19892 of 2018:
R.Balagunaseelan : Petitioner
Vs
1.The Chairman,
V.O.Chidambaranar Port Trust,
Tuticorin-628 004.
2.The Financial Advisor and Chief Accounts Officer,
Finance Department Establishment Section,
V.O.Chidambaranar Port Trust,
Tuticorin-628 004. : Respondents
Petition filed under Article 226 of the Constitution of India,
praying for issuance of a Writ of Certiorarified Mandamus, to call for
the entire records of the second respondent F.No.FIN-OFFAO-PEN-
SANCT-VI-17/D1142, dated 04.08.2017 and quash the same and
directing the respondents to pay the pensionary benefits and terminal
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benefits including gratuity, leave encashment and commutation of
pension on attaining the age of superannuation on 30.06.2013 along
with interest at the rate of 18% per annum from the date of
retirement to till the date of final payment for the delayed period,
within a stipulated time.
W.P.(MD)No.19893 of 2018:
A.Vanumamalai : Petitioner
Vs
1.The Chairman,
V.O.Chidambaranar Port Trust,
Tuticorin-628 004.
2.The Financial Advisor and Chief Accounts Officer,
Finance Department Establishment Section,
V.O.Chidambaranar Port Trust,
Tuticorin-628 004. : Respondents
Petition filed under Article 226 of the Constitution of India,
praying for issuance of a Writ of Certiorarified Mandamus, to call for
the entire records of the second respondent F.No.FIN-OFFAO-PEN-
SANCT-VI-17/D1143, dated 04.08.2017 and quash the same and
directing the respondents to pay the pensionary benefits and terminal
benefits including gratuity, leave encashment and commutation of
pension on attaining the age of superannuation on 30.06.2013 along
with interest at the rate of 18% per annum from the date of
retirement to till the date of final payment for the delayed period,
within a stipulated time.
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W.P.(MD)No.19894 of 2018:
R.Ramanathan : Petitioner
Vs
1.The Chairman,
V.O.Chidambaranar Port Trust,
Tuticorin-628 004.
2.The Chief Mechanical Engineer,
Mechanical and Electrical Engineering Department,
Personal Section,
V.O.Chidambaranar Port Trust,
Tuticorin-628 004. : Respondents
Petition filed under Article 226 of the Constitution of India,
praying for issuance of a Writ of Mandamus, to direct the respondents
to pay the pensionary benefits and terminal benefits including gratuity,
leave encashment and commutation of pension on attaining the age of
superannuation on 31.01.2017 along with interest at the rate of 18%
per annum from the date of retirement to till the date of final payment
for the delayed period, within a stipulated time.
W.P.(MD)No.19895 of 2018:
N.Vijayan : Petitioner
Vs
1.The Chairman,
V.O.Chidambaranar Port Trust,
Tuticorin-628 004.
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2.The Traffic Manager,
Traffic Department,
V.O.Chidambaranar Port Trust,
Tuticorin-628 004. : Respondents
Petition filed under Article 226 of the Constitution of India,
praying for issuance of a Writ of Mandamus, to direct the respondents
to pay the pensionary benefits and terminal benefits including gratuity,
leave encashment and commutation of pension on attaining the age of
superannuation on 31.05.2015 along with interest at the rate of 18%
per annum from the date of retirement to till the date of final payment
for the delayed period, within a stipulated time.
For Petitioner : Mr.D.Sadiq Raja
in all W.Ps.
For Respondents : Mr.T.Lajapathi Roy
in all W.Ps.
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COMMON ORDER
Since the issues involved in all the Writ Petitions are one and the same, they have been taken up for hearing together and are being decided by means of this common order.
2. The Writ Petitions in W.P.(MD)Nos.19892 and 19893 of 2018 are directed against the orders dated 04.08.2017, whereby and whereunder, the claim of the petitioners to pay them the pensionary benefits and terminal benefits including gratuity, leave encashment and commutation of pension was rejected.
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3. Seeking a Writ of Mandamus, to direct the respondents to pay the pensionary benefits and terminal benefits including gratuity, leave encashment and commutation of pension on attaining the age of superannuation on 31.01.2017 and 31.05.2015 respectively along with interest at the rate of 18% per annum from the date of retirement to till the date of final payment for the delayed period, to the petitioners, the other two Writ Petitions in W.P.(MD)Nos.19894 and 19895 of 2018 were filed.
4. It is stated by the petitioners that they belong to Scheduled Tribe Community and that they were appointed in the year 1981, 1981, 1980 and 1980 under the respondents as Lower Division Clerk, Lower Division Clerk, cleaner and out-door Clerk respectively. Thereafter, after periodical promotions, they retired from service on attaining the age of superannuation. However, their terminal benefits were not settled on account of pendency of verification of genuineness of the community status. The petitioners state that they obtained the Community Certificates from the Tahsildar concerned in the year 1977 [W.P.(MD)Nos.19892, 19893 and 19895 of 2018] and in the year 1976 [W.P.(MD)No.19894 of 2018] and the said certificates have not been cancelled so far and are very much valid and subsisting. Hence, http://www.judis.nic.in 6 seeking pensionary and terminal benefits, they sent representations to the respondents, but, so far, no fruitful result is forthcoming, instead, the impugned orders were passed in W.P.(MD)Nos.19892 and 19893 of 2018. Therefore, having left with no other option, the petitioners have come up with the present Writ Petitions for the relief as stated above.
5. The learned counsel for the petitioners submits that as per the Rules and Regulations governing the employee working in the respondents department, an employee, on attaining the age of superannuation, the payment of pension and other terminal benefits such as Gratuity, EL encashment, etc. are automatic and there is no power vested with the respondents to withhold or retain those terminal benefits. It is also submitted that only in case of pending criminal case or departmental proceedings whereupon the employee has been found guilty, the respondents can withhold the benefits. But since these two contingencies are not existing in the present case, the respondents have no power or jurisdiction to withhold such terminal benefits.
6.It is further stated by the learned counsel for the petitioners that pension is not a bounty or a reward, but a fair compensation to the employee for his long years of service. The petitioners have http://www.judis.nic.in 7 rendered more than 30 years of unblemished service in the respondents Department and hence, the payment of pension and other benefits, which has been earned by them, in view of their long service, cannot be denied or withheld, without any authority of law and withholding of the said terminal benefits violate Articles 14 and 16 of the Constitution of India. It is emphatically submitted that since the Community Certificates of the petitioners have not been cancelled by the competent authority in the manner known to law, the contents of the said Certificates have to be accepted as true and genuine. The learned counsel for the petitioners further states that the petitioners are suffering for want of financial assistance, after having rendered more than 30 years of dedicated service under the respondents department. Finally, it is submitted by the learned counsel for the petitioners that there is absolutely no justification on the part of the respondents department to withhold such benefits.
7. The learned counsel for the petitioners has relied upon various judgments of the Supreme Court as well as this Court in support of his contentions.
8. Though the Writ Petitions were admitted and notice was ordered on 17.09.2018, so far, no counter-affidavit is forthcoming on the side of the respondents.
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9. The learned counsel for the respondents submitted that unless and until the issue relating to the Community Certificate is decided, the terminal benefits of the incumbents need not be part with by the employer and till the issue is decided by the Committee concerned, there is no need for the employer to release the terminal benefits. It is also stated that once enquiry is pending before the competent authority as regards the verification of the veracity and genuineness of the Community Certificates, the plea of the incumbents that after completing service, retirement benefits should be given to them, cannot be accepted. Issuance of Community Certificate to and in favour of the incumbents cannot either be a matter of routine or an automatic exercise when some cloud is cast on the certificates issued in favour of the incumbents, it is contended. It is also stated that the petitioners are not co-operating with the Scrutiny Committee, despite receipt of summons.
10. I have considered the submissions made by the learned counsel on either side and perused the materials available on record carefully and meticulously.
11. It is pertinent to mention here that this Court, on an earlier occasion, has elaborately dealt with the subject matter in issue in W.P. http://www.judis.nic.in 9 (MD)No.3106 of 2019, decided on 12.04.2019 [B.Ravindran vs. The General Manager (Personnel), United India Insurance Company Limited], the relevant paragraphs whereof are extracted hereunder:
"19.According to the petitioner, Community Certificate of the petitioner has not been cancelled by the competent authority, ie., the State Level Scrutiny Committee, in the manner known to law, and hence the contents of the said Certificate have to be accepted as true and genuine. But in the judgments relied upon by the learned counsel for the respondents, more particularly, the decision made by a Division Bench of this Court in W.P.No.32407 of 2018 dated 18.07.2018, it has been categorically held that issuance of Community Certificate to and in favour of the incumbent cannot be a matter of routine or an automatic exercise when some cloud is cast on the certificate issued in favour of the incumbent. It has also been held that if a Community Certificate in favour of a person is issued on a wrong premise and in an incorrect manner, then it will be a negation of the right vested in some other individual, http://www.judis.nic.in 10 who is entitled to claim such Privileges / Benefits, under the Constitution of India and other laws quite applicable thereto, pertaining to the aspect of providing an equal opportunity in Public Employment and in Educational Institutions and in areas where the 'Policy of Reservation' is pressed into service. Hence, it is of primordial importance that the 'Concerned Authority' is to act with utmost care, caution and circumspection while issuing Community Certificate in favour of the concerned person, considering the fact that the said person stakes a claim for issuance of Community Certificate to the effect that he belongs to SC and ST Community.
20.Thus, it is apparently clear that the aspect of providing an equal opportunity in Public Employment and in Educational Institutions and in areas where the 'Policy of Reservation', gets very much disturbed in view of the false claim made by persons like that of the petitioner herein. The relevant paragraphs of the Order made in W.P.No.32407 of 2018 dated 18.07.2018 are extracted hereunder:
http://www.judis.nic.in 11 “31.At this stage, this Court worth recalls and recollects the decision of the Hon'ble Supreme Court in Kumari Madhuri Patil and Another vs. Addl.Commissioner, Tribal Development and Others (1994) 6 Supreme Court Cases 241, at Special pages 255 and 256, wherein at Paragraph Nos.(5) to (9), it is observed as follows:
“13.The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has 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 scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of social http://www.judis.nic.in 12 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 Directorate concerned.
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.
4. 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 department concerned, (11) 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 http://www.judis.nic.in 13 certificates. In the case of the 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 over-all 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 should also 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 pro forma, 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 castes or tribes or tribal communities concerned etc. http://www.judis.nic.in 14
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 acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of 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 http://www.judis.nic.in 15 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.”
32.It is to be remembered that an issuance of Community Certificate to and in favour of the http://www.judis.nic.in 16 Petitioner cannot either be a matter of routine or an automatic exercise when some cloud is cast on the Certificate issued in favour of the Petitioner. It is needless for this Court to make a pertinent mention that if a Community Certificate in favour of a person is issued on a wrong premise and in an incorrect manner, then it will be a negation of the right vested in some other individual, who is entitled to claim such Privileges/Benefits, under the Constitution of India and other Laws quite applicable thereto, pertaining to the aspect of providing an equal opportunity in Public Employment and in Educational Institutions and in areas where the 'Policy of Reservation' is pressed into service. Hence, it is of primordial importance that the 'Concerned Authority' is to act with utmost care, caution and circumspection while issuing a 'Community Certificate' in favour of the concerned person, considering the fact that the said person stakes a claim for issuance of Community Certificate to the effect that he belongs to SC and ST Community.
33.In view of the aforestated discussions and considering the surrounding facts and circumstances of the present case, this Court deems it fit and proper in directing the Second Respondent/State Level Scrutiny Committee, to verify the Community Certificate of the Petitioner, by scrupulously adhering to the necessary procedures and formalities also by http://www.judis.nic.in 17 providing an 'opportunity of Hearing' to the Petitioner and to pass appropriate reasoned speaking orders, within a period of eight weeks from the date of receipt of copy of this Order. Within the time adumbrated by this Court, the Deputy Superintendent of Police, Social Justice and Human Rights Wing, District Police Office, Kancheepuram District, is directed to conduct an 'Enquiry' and to submit his complete and comprehensive Report to the Second Respondent/Chairman of State Level Scrutiny Committee, who in turn, after receipt of the said Report, shall pass necessary orders. Before parting with the case, this Court directs the Petitioner to take part in the enquiry proceedings before the authority concerned and he is to extend his unstinted co- operation and assistance in an effective and efficacious manner, so as to enable the authorities to do the needful in the subject matter in issue.”
21.In the present case, it is seen that even after the Revenue Divisional Officer recommended cancellation of the community certificate by communication dated 13.02.1995 and consequently, the District Collector also issued summons on 06.03.1995 calling upon the petitioner to submit his explanation, the petitioner evaded appearing on all the summons of the District Collector's office. Even as http://www.judis.nic.in 18 per the report of the Revenue Divisional Officer, the blood brother of the father of the petitioner was a prominent politician in Madurai and all his children were issued with community certificate as if they belonged to Hindu Reddy Gajan (BC). Even though the petitioner was able to obtain an injunction from this Court in respect of the point of jurisdiction of the Revenue Divisional Officer, in a writ petition filed before this Court in W.P.No.29543 of 2003, thereafter he evaded the summons issued by the District Level Scrutiny Committee in the year 2006 to attend enquiry to prove his communal status. Till today, he is not able to bring a certificate from the Competent Authority in support of his claim that he belongs to Scheduled Tribe Community. A mere perusal of the typed-set of papers enclosed along with the Writ Petition would go to show that the petitioner has not even produced a single piece of evidence to prove his communal status, such as, S.S.L.C. Book copy, etc. Furthermore, the learned counsel for the respondents produced the files, on perusal of which, it is apparent that the petitioner did not appear before the http://www.judis.nic.in 19 authorities concerned, despite summons issued. This shows the attitude on the part of the petitioner.
22.In similar circumstances, a Division Bench of this Court, in the case of S.Ulaganathan v. State of Tamil Nadu and Others, reported in MANU/TN/0987/2017, ordered the State Level Scrutiny Committee to complete the enquiry and submit its report to the authorities by giving fair opportunity to the incumbent within a stipulated time frame. A direction was also given that on receipt of the status report of the incumbent's community certificate from the Committee, the authorities have to pass appropriate orders for disbursing the terminal benefits, within a stipulated time frame.
23.It is also appropriate to refer to yet another Division Bench judgment of this Court in the case of T.Prabakaran v. The Chairman, State Level Scrutiny Committee and Secretary to Government, reported in MANU/TN/1268/2017. In that case, it has been categorically held by this Court that as regards the http://www.judis.nic.in 20 question as to whether a particular person belongs to the reserved community, truth has to be found out, so as to enable him to claim the benefits attached to such status. It has been specifically held that the Courts have got a duty to see that only eligible people are given “Scheduled Tribe” Community certificates, since the benefits earmarked by the Constitution to the Scheduled Tribes should go to the deserving members of the community. Finally, a direction has been given to the State Level Scrutiny Committee to consider the matter afresh and take a decision on merits as per law, within a stipulated time frame.
24.In R.Agilandamurthy v. Tamil Nadu State Level Scrutiny Committee and Others, reported in MANU/TN/0107/2018, under similar circumstances, a Division Bench of this Court, after considering the facts and circumstances of the case in detail, held that for disbursement of the terminal benefits of the incumbent who has attained the age of superannuation, during the pendency of the writ http://www.judis.nic.in 21 petition therein, he has to await the ultimate outcome of the verification of the community status by the State Level Scrutiny Committee.
25.Thus, in all the above judgments, it has been categorically held that the issue as to whether the terminal benefits can be released to the incumbent, is dependent upon the ultimate outcome of the verification of the community certificate by the State Level Scrutiny Committee.
27.In view of the above stated circumstances and also considering the principles enunciated in the above judgments of this Court, the prayer of the petitioner to direct the respondents to sanction Pension including Commutation, Gratuity, Earned Leave Encashment, GSLI and Welfare Society to the petitioner along with interest at 12% per annum from 01.06.2017, cannot be entertained and accordingly the writ petition stands dismissed. No costs. It is open to the petitioner to take part in the enquiry proceedings before the competent authority http://www.judis.nic.in 22 in the State Level Scrutiny Committee and extend his unstinted co-operation and assistance in an effective and efficacious manner, so as to enable the authorities to decide the veracity of the community certificate of the petitioner and thereafter approach the respondents for appropriate relief, in the subject matter in issue. It is needless to state that the petitioner has to await the ultimate outcome of the verification of his community status by the State Level Scrutiny Committee for deciding the issue as to the disbursement of the terminal benefits by the respondents."
12. Therefore, following the ratio laid down in W.P.(MD)No. 3106 of 2019, decided on 12.04.2019, this Court is of the view that the present Writ Petitions are also liable to be dismissed and accordingly, dismissed. However, it is open to the petitioners to take part in the enquiry proceedings before the competent authority/ Scrutiny Committee and extend their unstinted co-operation and assistance in an effective and efficacious manner, so as to enable the authorities to decide the veracity of the community certificates of the petitioners and thereafter, approach the respondents for appropriate http://www.judis.nic.in 23 relief, in the subject matter in issue. It is needless to state that the petitioners have to await the ultimate outcome of the verification of their community status by the Scrutiny Committee for deciding the issue as to the disbursement of the terminal benefits by the respondents. No costs. Consequently, the connected miscellaneous petitions are closed.
Index : Yes/No 24.04.2019
Internet : Yes/No
SML
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R.MAHADEVAN, J.
SML
Common Order made in
W.P.(MD)Nos.19892 to 19895 of 2018
Delivered on:
24.04.2019
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