Karnataka High Court
G K Rudramuniswamy vs The New India Assurance Company on 23 December, 2020
Author: P.B.Bajanthri
Bench: P.B. Bajanthri
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23rd DAY OF December, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
WRIT PETITION NO.44086/2015(S-RES)
BETWEEN:
G.K. RUDRAMUNISWAMY,
LATE G.K. VEERABHADRIAH,
AGED ABOUT 60 YEARS,
R/O HARIHARA TQ AND
DIST. DAVANAGERE. ... PETITIONER
(BY SRI. PRAVEEN KUMAR RAIKOTE, ADVOCATE)
AND:
1. THE NEW INDIA ASSURANCE
COMPANY, UNITY BUILDINGS,
KALINGA RAO ROAD,
BANGALORE - 27
BY ITS MANAGING DIRECTOR.
2. THE DEPUTY GENERAL MANAGER
NEW INDIA ASSURANCE COMPANY
UNITY BUILDINGS,
KALINGA RAO ROAD,
BANGALORE - 27.
3. THE REGIONAL MANAGER
NEW INDIA ASSURANCE COMPANY
UNITY BUILDINGS,
KALINGA RAO ROAD,
BANGALORE - 27. ... RESPONDENTS
(BY SRI. B.C. SEETHARAMA RAO, FOR R-1 TO R-3)
THIS WRIT PETITION FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS
AND ALLOW THIS WRIT PETITION BY ISSUING AND ETC.,
2
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
17/12/2020 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In the instant petition, petitioner has prayed for the following reliefs:-
a) Writ of certiorari and quash the order at Annexure-D passed by the 3rd respondent-
Regional Manager vide order dated 08.03.2013.
b) Writ of certiorari and quash the order passed by the 2nd respondent vide Annexure-F dated 05.11.2013.
c) Writ of certiorari and quash the order at Annexure-H passed by the 1st respondent dated 11.12.2014.
d) Writ of Mandamus directing the respondents to give continuity of service and all service benefits to the petitioner till the date of his superannuation on 30.03.2013 and release all retirement benefits as if the petitioner had retired from service on 30.03.2013 from 01.04.2013.
e) Any other writ order or direction that this Hon'ble Court may deem just in the facts of the matter.
2. Petitioner joined service with the respondents-The New India Assurance Company Limited (for short, 'Company Limited') on 23.04.1979. It is submitted that petitioner had claimed service benefit while furnishing 'Beda Jangama' caste 3 certificate (SC). Respondent-Company Limited issued a show cause notice on 11.04.2001 stating that when petitioner joined service as an Assistant on 23.04.1979 he had availed concessions/ relaxation available to SC/ST category pursuant to 'Beda Jangama' caste certificate. Thereafter, petitioner had earned promotion to the post of Senior Assistant under SC category on 28.02.1991. The Caste Verification Committee, Shivamogga District submitted a report dated 16.01.2001, wherein it is stated that in terms of petitioner's school and college records petitioner belonged to Lingayat Community and caste certificate produced by him is an improper one. Consequently, caste certificate issued in favour of the petitioner was cancelled on 22.01.2001. Thus, respondent-Company Limited while invoking Rule 4(4) and (20) of General Insurance (Conduct, Discipline and Appeal), Rules, 1975 issued show cause notice as to why disciplinary action should not be initiated for which petitioner submitted his explanation on 25.04.2001. Thereafter, on 26.12.2003, Article of Charges were framed and Statement of Imputation was issued. The respondent-Company Limited have not taken further action pursuant to the initiation of enquiry whereas petitioner has been dismissed from service on 4 08.03.2013 in terms of the guidelines laid down by the Apex Court in the case of Kumari Madhuri Patil Vs. Additional Commissioner, Tribal Development, Thane (Annexure-D). Petitioner filed an appeal against the dismissal order on 21.03.2013 and it was dismissed by the Appellate Authority on 05.11.2013. Consequently, Memorial dated 24.02.2014 was presented and it was not entertained as there were no reasons to interfere with the decision of the Appellate Authority vide Annexure-H dated 11.12.2014. Hence, petitioner being aggrieved by the dismissal order dated 08.03.2013 by the respondent- Company Limited and order dated 05.11.2013 passed by the Appellate Authority and rejection of memorial dated 11.12.2014, has presented this petition.
3. Learned counsel for the petitioner urged that dismissal order dated 08.03.2013 and consequential orders are liable to set aside on two counts namely no enquiry was initiated and order of dismissal was issued on 08.03.2013 and he was due for retirement on 30.08.2013. He has cited the decisions passed by the co-ordinate benches of this Court in W.P.No.13214/2015(S-DIS) decided on 18.08.2016 (paragraph
7) and order dated 18.08.2016 which was confirmed 5 in W.A.No.3739/2016(S-DIS) decided on 31.01.2017 (Paragraph 5).
4. Per contra, learned counsel for the respondent- Company Limited submitted that respondent-Company Limited need not hold any enquiry in respect of cancellation of caste certificate followed by dismissal order against an employee. On this issue, he relied on the following five decisions:-
1) Kumari Madhuri Patil and another Vs. Additional Commissioner, Tribal Development and others reported in (1994) 6 SCC 241.
2) Sri.R.Vishwanatha Pillai Vs. State of Kerala and others reported in AIR 2004 (SC) 1469.
3) Bank of India and others V/s. Avinash B.Mandivikar and others reported in AIR 2005 SC 3395.
4) Chairman and Managing Director FCI and others Vs. Jagdish Balaram Bahira and Ors. reported in AIR 2017 SC 3271.
5) The Chief Regional Officer, The Oriental Insurance Co. Ltd., Vs. Pradip and Others reported in AIR 2020 SC 4858.
5. Heard the learned counsel for the parties.
6. Crux of the matter in the present petition is 'Whether order of dismissal and consequential orders confirming the 6 dismissal order without holding any enquiry is permissible or not?' Undisputed facts are that petitioner had obtained SC certificate with reference to 'Beda Jangama' caste on 08.05.1978 and he had joined service with the respondent-Company Limited while claiming reservation against one of the post of 'Assistant' earmarked for SC. Further, he was promoted to the post of Senior Assistant against one of the post reserved for SC under the policy of reservation and promotion on 28.02.1991. The respondent-Company Limited issued a show cause notice on 11.04.2001 pursuant to the report and Caste Verification Committee, Shivamogga dated 16.01.2001 read with cancellation of the caste certificate on 22.01.2001 for which petitioner had submitted his explanation on 25.04.2001. Thereafter, Article of Charges were issued on 26.12.2003. The respondents have not taken any action after framing Article of Charges. However, on 08.03.2013 petitioner was dismissed from service in terms of Apex Court guidelines issued in the case of Kumari Madhuri Patil cited supra. In terms of the Apex Court decisions cited supra the question of initiation of enquiry is not warranted once the initial appointment of the petitioner is on the 7 basis of fraud. The guidelines issued in the case of Kumari Madhuri Patil is at paragraph 13 in sub-paragraphs 14 and 15 which are reproduced hereunder:-
"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 status certificates, their scrutiny and their approval, which may be the following:
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 8 Union or elections to any local body, legislature or 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 educational institution concerned or the appointing authority by registered post with acknowledgement 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 from further study or continue in office in a post."
7. In the case of Sri.R.Vishwanatha Pillai, the relevant paragraphs 15 and 19 are reproduced hereunder:-
"15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eye of the law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding 9 recorded by the Scrutiny Committee that the appellant got the appointment on the basis of a false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Castes. In view of the finding recorded by the Scrutiny Committee and upheld up to this Court, he has disqualified himself to hold the post. The appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As the appellant had obtained the appointment by playing a fraud, he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit, such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.
19. It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of service, the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of the appellant. We do not find any substance in this submission as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. The appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eye of the law. The right to salary or pension 10 after retirement flows from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of a false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud.
8. In the case of The Chief Regional Officer, The Oriental Insurance Co. Ltd., the relevant paragraphs 6, 7 and 16 are reproduced hereunder:-
"6. Assailing the judgment of the High Court, it has been submitted on behalf of the appellant by Mr. Dinesh Mathur, learned counsel, that the judgment of the Full Bench of the Bombay High Court in Arun Sonone has been overruled in a decision of a three-Judge Bench of this Court in Chairman and Managing Director, Food 11 Corporation of India v. Jagdish Balaram Bahira (FCI). (2017) 8 SCC 670.
7. In its judgment in FCI, this Court has held:
"48...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 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...
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 12 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 result of the invalidation of a claim to belong to a group or category for whom the reservation is intended."
8. We may note at this stage that in paragraph 59 of the judgment, this Court has observed thus:
"59. The Full Bench judgment of the Bombay High Court in Arun [Arun v. State of Maharashtra, 2014 SCC OnLine Bom 4595 : (2015) 1 Mah LJ 457] has essentially construed the judgments in Kavita Solunke [Kavita Solunke v. State of Maharashtra, (2012) 8 SCC 430 : (2012) 2 SCC (L&S) 609] and in Shalini [Shalini v. New English High School Assn., (2013) 16 SCC 526 : (2014) 3 SCC (L&S) 265] as having impliedly overruled the earlier Full Bench judgments in Ganesh Rambhau Khalale [Ganesh Rambhau Khalale v. State of Maharashtra, 2009 SCC OnLine Bom 20 : (2009) 2 Mah LJ 788] and Ramesh Suresh Kamble [Ramesh Suresh Kamble v. State of Maharashtra, 2006 SCC OnLine Bom 1078 : (2007) 1 Mah LJ 423]. In view of the conclusion which we have arrived at in regard to the earlier decisions rendered by the two-Judge Benches in Kavita Solunke [Kavita Solunke v. State of Maharashtra, (2012) 8 SCC 430 : (2012) 2 SCC (L&S) 609] and Shalini [Shalini v. New English High School Assn., (2013) 16 SCC 526 : (2014) 3 SCC (L&S) 265], we are unable to subscribe to 13 the view expressed by the Full Bench in Arun [Arun v. State of Maharashtra, 2014 SCC OnLine Bom 4595 : (2015) 1 Mah LJ 457]. The judgment of the Full Bench of the Bombay High Court in Arun [Arun v. State of Maharashtra, 2014 SCC OnLine Bom 4595 : (2015) 1 Mah LJ 457] holds that: (SCC OnLine Bom para 75)
(i) mere invalidation of the caste claim by the Scrutiny Committee would not entail the consequences of withdrawal of benefits or discharge from employment or cancellation of appointments that have become final prior to the decision in Milind [State of Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117] on 28-11-2000;
(ii) the benefit of protection in service upon invalidation of the caste claim is available not only to persons belonging to Koshti and Halba Koshti but is also available to persons belonging to the special backward category on the same terms.
The High Court has even gone to the extent of holding that the decision in Milind [State of Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117] was in the nature of prospective overruling of the law which was laid down by the Bombay High Court. The above view of the Bombay High Court is clearly unsustainable. Neither the judgment in Milind [State of Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117] nor any of the judgments of this Court which have construed it have held that Milind [State of Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117] was an exercise in prospective overruling. The High Court was in error in holding so. The decision of the Full Bench in Arun [Arun v. State of Maharashtra, 2014 SCC OnLine Bom 14 4595 : (2015) 1 Mah LJ 457] is unsustainable. The Full Bench had evidently failed to notice that cases where the protection was granted by this Court following the invalidation of a caste claim was in exercise of the power conferred by Article 142 of the Constitution, depending upon the facts and circumstances of each case. The jurisdiction under Article 142 is clearly not available to the High Court in the exercise of its jurisdiction under Article 226. The High Court erred in arrogating that jurisdiction to itself."
16. The above narration would indicate that the decisions in Barapatre dated 10 October 2018 and Nimje dated 11 October 2018 were rendered in a context where, prior to the decision of the three judge Bench in FCI, the order of the High Court dated 1 November 2012 had attained finality. Since the order of the High Court inter partes had attained finality before the decision in FCI, the matter had to rest there. Both Barapatre and Nimje are decisions of a two judge Bench and do not lay down any principle of law contrary to the binding three judge Bench decision in FCI. Neither the DOPT circular dated 8 April 2019 nor the circular dated 20 June 2019 of the Department of Revenue can depart from the principles laid down in FCI. The circulars must hence be construed to apply only to the peculiar facts noted in Barapatre and Nimje which we have explained earlier. Any other construction of the circulars will render them ultra vires. The government by an executive act cannot possibly over-ride the binding decision of the three judge Bench of this Court in FCI. In the decision in FCI, this Court held:
65. Administrative circulars and government resolutions are subservient to legislative mandate and cannot be contrary either to constitutional norms or statutory principles.15
Where a candidate has obtained an appointment to a post on the solemn basis that he or she belongs to a designated caste, tribe or class for whom the post is meant and it is found upon verification by the Scrutiny Committee that the claim is false, the services of such an individual cannot be protected by taking recourse to administrative circulars or resolutions. Protection of claims of a usurper is an act of deviance to the constitutional scheme as well as to statutory mandate. No government resolution or circular can override constitutional or statutory norms. The principle that the Government is bound by its own circulars is well settled but it cannot apply in a situation such as the present. Protecting the services of a candidate who is found not to belong to the community or tribe for whom the reservation is intended substantially encroaches upon legal rights of genuine members of the reserved communities whose just entitlements are negated by the grant of a seat to an ineligible person. In such a situation where the rights of genuine members of reserved groups or communities are liable to be affected detrimentally, government circulars or resolutions cannot operate to their detriment.
9. In view of the aforesaid decisions, holding of disciplinary proceedings is not warranted. Even, if petitioner is provided an opportunity of adducing evidence in a disciplinary proceedings, petitioner cannot improve the material information, since caste certificate issued in favour of the petitioner is nullified by the competent authority. That apart, petitioner joined service based on caste certificate of SC and once the foundation is removed, nothing remains. Apex Court discussed equity 16 jurisdiction in the case of Nidhi Kaim and another Vs. State of Madhya Pradesh and others reported in (2017) 4 SCC 1, wherein it is held that anything obtained by fraud would not be allowed to be sustained. The two decisions of this Court cited by the petitioner in W.P.No.13214/2015(S-DIS) decided on 18.08.2016 and W.A.No.3739/2016(S-DIS) decided on 31.01.2017 do not assist the petitioner. Accordingly, the following:-
ORDER In that view of the matter, petitioner has not made out case so as to interfere with the impugned action of the respondents at Annexure - D dated 08.03.2013, Annexure-F dated 05.11.2013 and Annexure-H dated 11.12.2014.
Accordingly, Writ Petition stands dismissed.
Sd/-
JUDGE KPS