Karnataka High Court
Smt. Shantala G. Rao vs The Divisional Commissioner, Mysore ... on 30 July, 2004
Equivalent citations: ILR2004KAR4801, 2004(6)KARLJ325
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
ORDER Ram Mohan Reddy, J.
1. The petitioner has called in question the legality and validity of the order dated 7-6-1996 of the 2nd respondent-Caste Verification Committee, recording a finding that the petitioner does not belong to "Maleru" community, declared as 'Scheduled Tribe' and the order dated 27-10-1998 of the 1st respondent, dismissing the appeal. In addition, the petitioner has questioned the order dated 9-4-1999 of the 3rd respondent, employer, terminating her from the services of the Bank.
2. Briefly stated facts are as under:
The petitioner claiming to be a member of "Maleru" community, declared a 'Scheduled Tribe' in the State of Karnataka, secured employment on 15-6-1977 in the 3rd respondent-Bank, to the post of a Clerk, as against the vacancy reserved for 'Scheduled Tribe', on the basis of a certificate dated 9-9-1976, issued by the Additional Chief Judge and Chief Judicial Magistrate, Shimoga District. The petitioner claims that the Tahsildar of Koppa, Chickmagalore District, issued a certificate dated 22-7-1975, certifying that the father of the petitioner belong to "Maleru" community.
3. The 3rd respondent-Bank, having secured a report from the office of the Inspector General of Police, Civil Rights Enforcement Cell, that the certificate dated 9-9-1976 was false as the petitioner did not belong to "Maleru" community but belong to "Brahmin" community, the employer, instituted disciplinary proceedings by issuing a charge memo/show-cause notice dated 1-8-1991, to show cause as to why the petitioner should not be terminated from the services of the Bank. The petitioner, being aggrieved of the charge memo, filed Writ Petition No. 11793 of 1993 and this Court by order dated 15-4-1998 directed the Bank to keep in abeyance the charge memo/show-cause notice and to refer the matter to the concerned scrutiny committee constituted by the State Government to verify the 'caste certificate' issued by the Tahsildar, following the observation made by the Division Bench of this Court in the case of Babu Rao v. Canara Bank and Ors., W.A. No. 4452 of 1995 connected with W.A. No. 4453 of 1995, DD: 30-7-1997;
4. This Court at para 5 of the said order dated 15-4-1998 passed in Writ Petition No. 11793 of 1993, made an observation as regards the contention of the petitioner that her caste was certified by the Tahsildar, Koppa, based on which, she secured a job as a Clerk in the Bank. It was on the basis of such a "contention of the petitioner, this Court directed that the 'caste certificate' said to have been issued by the Tahsildar, be referred ~te the Caste Verification Committee constituted by the Government of Karnataka. It may not be out of place to mention here that, the -petitioner made a factually incorrect statement before this Court inasmuch as the certificate that was issued to the petitioner dated 9-9-1976 was the one issued by the Additional Chief Judge and Chief Judicial Magistrate, Shimoga District and not the Tahsildar of Koppa. It is also relevant to mention at this stage that when the W.P. No. 11793 of 1993 was heard, the petitioner suppressed the fact of the proceedings before the Caste Verification Committee which had culminated in an order dated 7-6-1996 and against which an appeal was preferred on 27-2-1997. The direction of this Court to refer the matter to the Caste Verification Committee, was unnecessary.
5. The Caste Verification Committee of Chickmagalore District was constituted under the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointments, etc.) (Amendment) Rules, 1993 (for short, 'Rules'). The said Committee issued a show-cause notice to the petitioner dated 28-2-1996 to which the petitioner submitted her reply. The petitioner was directed to produce all the records in respect of her case and to appear before the Authority on 9-4-1996, to which date the case was adjourned. On the said date, the petitioner did not produce any records nor after the expiry of 15 days which was the time extended by the Caste Verification Committee. The 2nd respondent recorded a finding that the petitioner did not belong to "Maleru" caste, by an order dated 7-6-1996. The appeal preferred by the petitioner was dismissed by the 1st respondent by order dated 27-10-1998. The 3rd respondent-Bank, on being informed of the aforesaid orders, -passed an order dated 9-4-1999, dismissing the petitioner from services. The petitioner being aggrieved by the aforesaid three orders, has preferred this writ petition.
6. The petition is opposed by the 3rd and 4th respondents, the employer-Bank, by filing statement of objections, inter alia contending amongst other legal contentions that the writ petition is not maintainable for not having exhausted the alternative remedy of a revision petition against the order oT the 1st respondent in appeal under Rule 7-A of the Rules.
7. Sri G.S. Bhat, learned Counsel for the petitioner would contend that the order of the 2nd respondent is vitiated on account of perversity of procedure and the proceedings is in grave violation of principles of natural justice, in not affording reasonable opportunity to the petitioner to put forth her claim. The learned Counsel would further contend that the Appellate Authority having considered extraneous material, not put to the petitioner, has recorded a finding, which is illegal. In addition, it is contended that the Caste Verification Committee, under the Rules, did not have the jurisdiction to verify the certificate issued by the Additional Chief Judge and Chief Judicial Magistrate, Shimoga District, and in that regard, he would place reliance on a decision of a learned Single Judge of this Court in the case of Bhovi Samaja Seva Sangha, Sirsi and Ors. v. Divisional Commissioner, Belgaum Division and Ors., W.P. Nos. 36702 to 36718 of 2000, DD: 30-08-2001; and the decision of the Division Bench of this Court in the appeal filed against the order of the learned Single Judge, in Divisional Commissioner, Belgaum Division, Belgaum and Ors. v. Bhovi Samaja Seva Sangha, Sirsi, Uttara Kannada District and Ors., (DB). Lastly, the learned Counsel would contend that the order of termination of the services of the petitioner is illegal due to non-compliance of principles of natural justice in not extending an opportunity to show cause after the enquiry officer submitted his report, in other words, a 2nd show-cause notice.
8. Sri D.L.N. Rao, learned Senior Counsel for the employer-Bank-respondents 3 and 4 would contend that the Inspector General of Police, Civil Rights Enforcement Cell, after an enquiry into the caste certificate issued by the Additional Chief Judge and Chief Judicial Magistrate, Shimoga District, furnished a report dated 23-4-1991 informing the Bank that the petitioner did not belong to "Maleru" community on the basis of records maintained in the school and the Pre-University college where the petitioner completed her education, etc., in which, the petitioner is stating to have declared as belonging to 'Brahmin' community. Sri Rao, in addition, would contend that in the Domestic Enquiry held by the Bank, the petitioner was furnished with copies of the documents relied upon by the employer such as the report of the Inspector General of Police, Civil Rights Enforcement Cell and in fact, examined the police official as M. W. 2 in support of the charge and that although the petitioner was extended reasonable opportunity to put forth her defence, she did not do so. Learned Senior Counsel would maintain that the termination of the services of the petitioner is in accordance with law and is justified.
9. In reply to the contention of second show-cause notice, Sri Rao would submit that the Supreme Court in the case of Kumari Madhuri Patil and Anr. v. Additional Commissioner, Tribal Development and Ors., , in similar circumstance, held, that no further notice was necessary to continue in office after the Caste Verification Committee had recorded a finding that the employee did not belong to the Scheduled Tribe. The learned Senior Counsel would further contend that in the proceedings in W.P. No. 11793 of 1993 filed by the petitioner, the Bank had filed an LA. for vacating stay in which the particulars of the proceedings before the Caste Verification Committee was averred, and that no order was made on the LA. Lastly, the learned Counsel would support the conclusions arrived at by the Caste Verification Committee as well as the Appellate Authority.
10. Sri H.B. Narayana, learned High Court Government Pleader would maintain that the orders of the Caste Verification Committee and the Appellate Authority are well-merited, not calling for interference at the hands of this Court.
11. Having heard the learned Counsels for the parties and perused the records, the following three questions arise for decision making in this writ petition:
(1) Whether the Caste Verification Committee was justified in recording a finding that the petitioner did not belong to "Maleru" Community, a declared 'Scheduled Tribe'?
(2) Whether the Appellate Authority was justified in confirming the order of the Caste Verification Committee?
(3) Whether in the facts and circumstances of the case, the petitioner could invoke the principles of natural justice and whether it is a case where even if notice had been given, the result would not have been different and whether no prejudice was caused to the petitioner?
12. The facts that the petitioner secured an employment as a Clerk in the 3rd respondent-Bank, in a vacancy reserved for the Scheduled Caste, on the basis of a certificate dated 9-9-1976, issued by the Additional Chief Judge and Chief Judicial Magistrate, Shimoga, Shimoga District, certifying that the petitioner belongs to "Maleru" community and that the Tahsildar, Koppa of Chickmagalore District, had not issued any certificate after an enquiry as to which community the petitioner belonged, are not in dispute. The fact that the petitioner did not produce before the Caste Verification Committee the certificate dated 22-7-1975 said to have been issued by the Tahsildar, Koppa, certifying that the father of the petitioner belong to "Maleru" community, is also not in dispute. In addition, it is not in dispute that the school records do not disclose that the petitioner belong to "Maleru" community, but that she belongs to Brahmin community; that the officials of the Civil Rights Enforcement Cell, during the year 1990 obtained the statement of the mother of the petitioner, her neighbours and secured information from the Panchayat Office at Koppa, are admitted by the petitioner in her letter dated 20th May, 1991 produced as Annexure-D to the Writ Petition No. 11793 of 1993.
13. The entire case of the petitioner that she belongs to "Maleru" community, a declared 'Scheduled Tribe', revolves round only one document i.e., the certificate dated 9-9-1976 issued by the Additional Chief Judge and Chief Judicial Magistrate, Shimoga District. A copy of the certificate is produced as Annexure-Rl to the statement of objections filed by the learned Counsel for respondents 3 and 4. It is noticed from this certificate that the petitioner and her family claim to be ordinary residents of the village Koppa of Chickmagalore District in the State of Karnataka. The certificate also makes out a list of authorities empowered to issue the same. This certificate in the first place could not have been issued by the said authority i.e., the Additional Chief Judge and Chief Judicial Magistrate, Shimoga, because, it was not preceded by an enquiry of a competent authority at Koppa. Moreover, this certificate is issued by the Magistrate at Shimoga which is in Shimoga District, though the petitioner and her family claim to be ordinary residents of village Koppa of Chickmagalore District. Secondly, the Magistrate was not. empowered to issue such a certificate as the person authorised was the Chief Presidency Magistrate/Additional Chief Presidency Magistrate/Presidency Magistrate. It is quite obvious that the Magistrate based on the say of the petitioner and without seeking any verification from the Tahsildar, Koppa, had issued the certificate. One cannot comprehend this certificate to be one which could legally declare that the petitioner belongs to "Maleru" community. It is not the case of the petitioner that the Chief Judicial Magistrate had, in fact, held an enquiry as required under law before certifying the community to which the petitioner belongs, inasmuch as to say anything further, would amount to speculation. If this sole documentary evidence is eschewed, then, there remains nothing to establish that the petitioner was a member of a 'Scheduled Tribe' known as "Maleru" community in the State of Karnataka. Thus, the basis on which the petitioner secured an employment in a reserved category is itself void.
14. In the writ petition filed by the petitioner on an earlier occasion in W.P. No. 11793 of 1993, the learned Single Judge of this Court believed that her caste was certified by the Tahsildar, Koppa, on which basis she had secured an employment, as is obvious from the observation at para 8 of the order dated 15-4-1998. In addition, the petitioner did not disclose the order of the Caste Verification Committee dated 7-6-1998, impugned in this writ petition, in the Court proceedings in W.P. No. 11793 of 1993. But, on the other hand, the petitioner having suppressed the relevant information of the proceedings before the Caste Verification Committee, its rejection of the claim and the consequent appeal to the Appellate Authority, a direction came to be issued to refer the certificate said to be issued by the Tahsildar for verification by the Caste Verification Committee. The petitioner is guilty of suppression of material facts.
15. The Rules of 1993 provides for the constitution of the Caste Verification Committee for each District, to verify the caste certificate issued in respect of persons belonging to Scheduled Caste and Scheduled Tribe said to consists of members as set out in Rule 4.
16. Under Rule 6, the person claiming reservation, is required to submit an application in Form 1 for verification of caste or caste income claims.
17. The Caste Verification Committee, the 2nd respondent, in this case, issued a show-cause notice dated 28-2-1996 to the petitioner to which a reply was submitted. The petitioner despite being extended reasonable opportunities, failed to produce the documents in support of her case to have the certificate verified by the Caste Verification Community. The petitioner did not even tender a plausible explanation as to the entries found in the records of the school and that of the college, where she declared her community to be a "Brahmin". What is more important is the fact that the petitioner did not produce the caste certificate dated 22-7-1975 said to have been issued by the Tahsildar, Koppa, certifying that the father of the petitioner belong to "Maleru" community. In matters of caste verification, it is incumbent upon the person who claims to belong to a particular community declared to be either a Scheduled Tribe or a Scheduled Caste, to produce material as regards his/her ancestry in order to test the claim. In the present case, the petitioner did not produce any material with regard to her ancestry or anthropological moorings nor ethnological kinship, which are essential to seek the status of 'Scheduled Caste' or 'Scheduled Tribe'. The observations of the Supreme Court in Kumari Madhuri Patil's case, in the circumstances, is apposite:
"The anthropological moorings and ethnological kinship affirmity gets genetically ingrained in the blood and no one would shake off from past, in particular, when one is conscious of the need of preserving its relevance to seek the status of Scheduled Tribe or Scheduled Caste recognised by the Constitution for their upliftment in the society. The ingrained tribal traits peculiar to each Tribe and anthropological features all the more become relevant when the social status is in acute controversy and needs a decision. The correct projectives furnished in pro forma and the material would lend credence and give an assurance to properly consider the claim of the social status and the concerned officer or authority would get an opportunity to test the claim for social status of particular caste or tribe or tribal community or group or part of such caste, tribe or tribal community. It or he would reach a satisfactory conclusion on the claimed social status. The father of the appellant has failed to satisfy the crucial affinity test which is relevant and germane one".
18. The petitioner, admittedly, did not furnish any relevant material to support her claim that she belong to "Maleru" community and hence cannot allege improper consideration of the claim of social status. The material before the Caste Verification Committee were the certificate of the Chief Judicial Magistrate certifying that the petitioner belonged to "Maleru" community and the report of the Inspector General of Police, Civil Rights Enforcement Cell, Mysore, which disclosed that the petitioner had declared her community as "Brahmin" in the school and college records, for which, no explanation is offered by the petitioner either before the Caste Verification Committee much less before the Appellate Authority or before this Court. The contention of the learned Counsel for the petitioner that there is violation of principles of natural justice at the hands of the Caste Verification Committee is but a specious plea.
19. The Appellate Authority referred to authoritative texts on the moorings of "Maleru" tribals in contradistinction with that of "Maleru" community which has no tribal character but a unique community in Malnad Taluk of Western division consisting of Debrahmanised women of Sacerdotal Class and their progeny attached by the name of "Maleru" to the Shiva temple. The letter dated 23-4-1996 of the Director of Social Welfare, Government of Karnataka stating that the persons belonging to that "Maleru" community who descended from 'Brahmin' caste, cannot be treated as 'Scheduled Tribe', was considered by the Caste Verification Committee and was also taken note of the Appellate Authority. The contention of the learned Counsel that the authoritative text considered by the Appellate Authority is extraneous material, is one without any merit. As noticed supra, the petitioner failed to present any evidence much less substantial legal evidence to support her claim that she belong to "Maleru" community, declared 'Scheduled Tribe' in the State of Karnataka.
20. The decision of the learned Single Judge of this Court in Bhovi Samaja's case, is not applicable to the facts of this case since, what fell for consideration therein, was, the caste certificate that was issued by the jurisdictional Tahsildar after conducting an enquiry and on being satisfied about the caste mentioned or claimed by the petitioner therein, it was in that context, the learned Single Judge held that the provisions of the Rules would not apply and there was no need for verification of such certificates issued much earlier to the rules having brought into force. In fact, when the matter was carried in appeal before the Division Bench of this Court, the question as to applicability or otherwise of rules was not considered.
21. Be that as it may. The facts of the present case as noticed supra, admittedly, is not one in respect of a certificate said to be issued by the Tahsildar of Koppa, after an enquiry. At the cost of repetition, it is to be noticed that the petitioner did not secure a caste certificate from the jurisdictional Tahsildar at Koppa, after an enquiry, but on the contrary, secured a certificate from the Additional Chief Judge and Chief Judicial Magistrate, Shimoga District, who was incompetent to issue the certificate. In addition, the so-called claim of the petitioner that the father of the petitioner did secure a certificate from the Tahsildar, Koppa, was also not placed before the Caste Verification Committee. In this view of the matter, the contention of the learned Counsel that the aforesaid two judgments of this Court would apply to the facts of the present case, is misconceived.
22. The last contention of Sri G.S. Bhat is that, the order of termination of service, is not preceded by a second show-cause notice and hence, violates principles of natural justice. This contention at the threshold is without any merit. The Domestic Enquiry held against the petitioner, in respect of the false declaration that she belongs to "Maleru" community, a declared 'Scheduled Tribe', is not questioned. The Apex Court in Kumari Madhuri Patil's case, at para 12(5) observed that, after the Scrutiny Committee records a finding, holding that the certificate obtained was false, the appointing authority should not continue the said officer in the office or in the post in which he/she was appointed. The termination of service of the petitioner by order dated 9th April, 1999 cannot be said to be either illegal, arbitrary or in violation of the principles of natural justice. The Supreme Court in a catena of decisions has held that there can be certain situations in which an order passed in violation of principles of natural justice need not be set aside under Article 226 of the Constitution. If no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Therefore, if upon admitted or undisputed facts, only one conclusion is possible, then, in such a case, the breach of principles of natural justice by itself is prejudiced, would not apply. In the present facts of the case, the termination of services of the petitioner is preceded by a Domestic Enquiry in which the petitioner actively participated and the employer as passed the order of termination only after the Caste Verification Committee recorded its finding that the petitioner did not belong to "Maleru" community. By giving a show-cause notice to the petitioner, on admitted facts, the result would not have been different, and therefore, no prejudice is caused to the petitioner by not granting an opportunity of hearing. Following the decision in Kuraari Madhuri Patil's case, the termination of services of the petitioner without any show-cause notice, cannot be said to have incurred the vice of principles of natural justice. The Supreme Court in the case of Managing Director, ECIL, Hyderabad v. B. Karunakar, , held that in all cases, Enquiry Officer report is not furnished to delinquent employee in a Disciplinary Enquiry proceedings, Court should send copy of the report to the aggrieved employee if he/she has not already come before Court/Tribunal and giving employee an opportunity to show cause, his/her case was prejudiced because of non-supply of the report. The Supreme Court further held that the "Court/Tribunal should not mechanically set aside stating that the report was not furnished as is regrettable being done at present". In the present case, as I have arrived at a conclusion that the findings recorded by the authorities that the petitioner did not belong to "Maleru" community, is legal and valid, the petitioner is not entitled to continue in employment and her appointment to the post of clerk, which was reserved for a 'Scheduled Tribe', deserves to be cancelled. It is well-known that he/she who comes to Court with a false claim, cannot plead equity nor the Court would be justified in exercising equity jurisdiction in his/her favour. The petitioner having put forth a false plea of social status recognised and declared to be a 'Scheduled Tribe', tantamounts to a case of fraud played by the concerned and therefore, no sympathy or equitable consideration can come to the rescue of the petitioner.
In the result, I am of the considered opinion that in the absence of any distinct material brought on record and there being no titre of evidence to substantiate the claim of the petitioner, this Court would not hazard to conclude to the contrary and upset the findings of fact recorded by the Caste Verification Committee as well as the Appellate Authority: On a fair consideration of the material on record, I am of the opinion that the orders impugned in this writ petition are well-merited, fully justified and are neither shown to suffer any infirmity in law or vitiated on account of perversity of approach. The writ petition is devoid of merits and is dismissed.