Kerala High Court
Managing Director vs K.G.Viswanathan on 20 March, 2015
Author: Ashok Bhushan
Bench: Ashok Bhushan, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 7TH DAY OF APRIL 2016/18TH CHAITHRA, 1938
WA.No. 1954 of 2015 () IN WP(C).11146/2009
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AGAINST THE ORDER/JUDGMENT IN WP(C).11146/2009 of HIGH COURT OF KERALA
DATED 20-03-2015
APPELLANT(S)/(3RD RESPONDENT):
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MANAGING DIRECTOR, STATE BANK OF TRAVANCORE
STATE BANK OF TRAVANCORE, HEAD OFFICE
THIRUVANANTHAPRUAM PIN 695 001
BY ADV. SRI.P.RAMAKRISHNAN
RESPONDENT(S)/(PETITIONER & RESPONDENTS 1 & 2):
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1. K.G.VISWANATHAN
S/O.LATE K.T GOVINDAN
MANAGER(INSPECTION-MOBILE) STATE BANK OF TRAVANCORE
HEAD OFFICE, TRIVANDRUM (NOW RETIRED)
RESIDING AT 'KARTHIKA", KUNJATHOOR POST, MANJESWARAM
2. STATE OF KERALA
REPRESENTED BY THE SECRETARY
SCHEDULE CASTE/SCHEDULE TRIBE DEVELOPMENT
TRIVANDRUM 695 001
3. SCRUITINY COMMITTEE FOR VERIFICATION OF SC/ST CLAIMS,
REPRESENTED BY THE CHAIRMAN,
PRINCIPAL SECRETARY, SC/ST DEVELOPMENT DEPARTMENT
TRIVANDRUM 695 001
R1 BY ADV. SRI.ALAN PAPALI
R1 BY ADV. SRI.J.VIMAL
R1 BY ADV. SRI.M.K.DAMODARAN (SR.)
BY SRI. P.K.VIJAYAMOHANAN
BY SPL.GOVERNMENT PLEADER SMT.GIRIJA GOPAL
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25-02-2016, ALONG
WITH COC. 1268/2015 & WA. 2470/2015, THE COURT ON 07-04-2016 DELIVERED THE
FOLLOWING:
"C.R."
ASHOK BHUSHAN, C.J.
&
A.M. SHAFFIQUE, J.
================
W.A. Nos. 1954 & 2470 of 2015
& Cont.Case No. 1268 of 2015
=====================
Dated this, the 7th day of April, 2016
J U D G M E N T
Shaffique, J.
Writ Appeal No.1954/15 is filed by the 3rd respondent in WP (C) No. 11146/2009 and Writ Appeal No. 2470/15 is filed by the respondents 1 and 2 in the said writ petition challenging judgment dated 20/3/2015.
2. The 1st respondent in the appeals filed writ petition seeking to quash Exts.P2, P8, P9 and P10 and for a direction to the 3rd respondent to reinstate the petitioner in service with all consequential benefits and certain other reliefs were also sought for.
3. The short facts involved in the writ petition would disclose that the 1st respondent in the appeals, who is hereinafter referred to as the petitioner, claimed to belong to Bakuda Community which is recognized as a Scheduled Caste W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:2:- Community. It is stated that at the time of admission to the school, his community status was entered as Mala Araya which is a Scheduled Tribe Community. The entry regarding the caste status came to be revealed in the caste certificates of the petitioner and his brothers. According to the petitioner, he or his siblings were not aware of the mistake. It was at the time of their marriage it was known that they belong to Scheduled Caste community as members from the Mala Araya refused to give their girls in marriage to a person belonging to Bakuda Community. In the meantime, on the basis of an anonymous complaint, KIRTADS had conducted an enquiry about the caste status of the petitioner and his brothers. They gave a reply explaining and admitting the fact that they were Scheduled caste members belonging to Bakuda community. Their forefathers had migrated to Idukki and that the wrong entries in the caste certificate or in the school register were made by Christian missionaries and they are not involved in the matter. However, the 1st respondent issued a show cause to the petitioner and his brothers specifically stating, as to why the ST claim should not be refused. Petitioner submitted W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:3:- necessary explanation to the same and indicated that they are not enjoying or claiming the status of Scheduled Tribe from next generation onwards. However, proceedings were issued by the 2nd respondent directing the concerned departments to take appropriate action in the matter. Petitioners sought for sympathetic consideration on the ground that they were actually not responsible for the entries made in the admission register as Scheduled Tribe community. Since no action was taken in the matter, petitioner and his brothers filed OP NO.17296/2001 challenging Ext.P2 order of the 2nd respondent. The OP was disposed of as per judgment dated 17/3/2006 with a direction to the 1st respondent to consider and pass appropriate orders in the light of the judgment in Prakash v. State of Kerala (2002 (2) KLT 580). Petitioner was directed to appear before the Scrutiny committee on 5/4/2008. Petitioner's brother attended the hearing and had submitted the necessary facts. However, no orders were passed in the matter. In the meantime, petitioner was working as member of the Audit party at Erattupetta Branch, State Bank of Travancore. He was served with letter dated 30/3/2009 intimating W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:4:- that his service has been terminated and informing him that he will not be entitled for any terminal benefits. Petitioner submits that he has come to know that the 2nd respondent has passed an order dated 31/1/2009 to reject the Scheduled Tribe status of the petitioner and his brothers and it was decided to recover the amount from the petitioner which his family members have unduly enjoyed as Scheduled tribe members. Ext.P9 is the said order dated 31/1/2009. Ext.P9 has been accepted by the Government and direction had been issued to prosecute the petitioner and his brothers in terms of Government Order dated 31/1/2009. Petitioner therefore challenges the orders by which his service was terminated and proposed action was taken against him in terms of Exts.P8, P9 and P10.
4. Counter affidavit is filed by 3rd respondent inter alia stating that vigilance officer has stated in Ext.P1 report that the petitioner had admitted the fact that he belongs to Bakuda community which is not a Scheduled caste. The only explanation was that the entry was not made at the instance of the petitioner and his siblings. It was stated that the petitioner was clearly W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:5:- aware of the wrong entry in the community status at the time of receiving his SSLC Certificate but he still applied for the job suppressing his real caste status. Therefore, the respondents supported the stand taken in the matter. It is also stated that the petitioner has been appointed to a post exclusively reserved for Scheduled tribes on the basis of a certificate which has now been set aside.
5. The learned Single Judge after considering the respective contentions of the parties observed that the action of the petitioner cannot be termed as fraud in terms of Section 11 of the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 (hereinafter referred to as 1996 Act). Further, it was found that Section 11 of the 1996 Act has no application in respect of the member of Scheduled caste who obtains the certificate in the name of Scheduled Tribe. Learned Single Judge also observed that the certificate can only be treated as a piece of evidence for the authority who has given employment to establish fraud and having come to such a conclusion, it was held that before terminating the service of the W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:6:- petitioner, the respondent bank did not endeavour to find out fraud on the part of the petitioner. Accordingly, Ext.P8 has been set aside. Thereafter, direction had been issued to release the entire pensionary benefits to the petitioner without any further delay. It was further mentioned that the Bank is free to proceed against the petitioner in accordance with law, to conduct an enquiry regarding fraud committed by the petitioner and that any payment of terminal benefits will be subject to the outcome of such enquiry.
6. We heard the learned counsel Sri.P.Ramakrishan appearing for the appellant in WA No.1954/15, learned special Government Pleader appearing on behalf of the State and its authorities in WA No. 2470/15 and learned counsel Sri.Vijaya Mohanan appearing on behalf of the petitioner.
7. The learned counsel for the appellants placed reliance on the provisions of the Act to indicate that once it is found that the employment had been obtained based on false community certificate, the authorities have jurisdiction to terminate the candidate from service. Sections 8A, 11 and 15A of the 1996 Act W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:7:- are relevant, which read as under:
"8A. Community Certificates, if found bogus, to be cancelled- (1) Where on verification, the Scrutiny Committee finds that the community certificate issued in support of the Scheduled Castes or Scheduled Tribes claim of the individual is not genuine, it shall cancel the same and intimate such cancellation to the appointing authority or local authority or head of the educational institution, as the case may be, together with a request to cancel the appointment or admission, as the case may be.
(2) Whenever an intimation is received under sub-section (1), the appointing-authority or local authority or head of the educational institution, as the case may be, shall cancel the appointment or admisison, without any further notice to the individual concenred and debar him from continuing in office or studying further."
"11. Cancellation of false Community Certificate -(1) Where, before or after the commencement of this Act, a person not belonging to any of the Scheduled Castes or the Scheduled Tribes has obtained a false Community Certificate to the effect that either himself or his children belongs or belong to such Caste or the Tribe, the Scrutiny Committee may either suo motu or on a written complaint or report by any person or W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:8:- authority, call for the records and enquire into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall, by order, cancel the certificate after giving the person concerned an opportunity of making a representation, if any. (2) The powers of the nature referred to in sub-
section (1) may also be exercised by the Government.
(3) The Scrutiny Committee while performing its functions for verification and cancellation of community certificates shall follow such procedure as may be prescribed.
(4) An order passed by the Scrutiny Committee shall be final and conclusive. No suit or appeal shall lie against the order passed by the Scrutiny Committee."
"15A. Penalty for obtaining a fraudulent Community Certificate by a Scheduled Caste member as Scheduled Tribe and vice versa- Whoever belonging to any of the Scheduled Castes obtains fraudulently a Community Certificate that he belongs to any of the Scheduled Tribes or whoever belonging to any of the Scheduled Tribes obtains fraudulently a community certificate that he belongs to any of the Scheduled Castes, shall on conviction, be punishable with rigorous imprisonment for a term which shall not be less than six months but which may extend to two W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:9:- years and with fine which shall not be less than one thousand rupees but which may extend to five thousand rupees."
8. In fact, this is a case in which petitioner admits that he was not a member of Scheduled tribe whereas he is a member of Scheduled caste. Therefore, there is nothing wrong in the authorities in cancelling the community certificate issued in favour of the petitioner. It is also evident from the facts on record that the respondent authorities have followed the procedure prescribed under the Act. Under such circumstance, the only question to be considered is whether the termination of the petitioner from service of the Bank is proper or not.
9. First of all, even according to the petitioner, he was a person belonging to Scheduled caste community. According to him, in the SSLC certificate of his and his siblings, the caste status is shown as Scheduled tribe. When this fact is known to them and when he applies for a job stating his caste status as Scheduled tribe, it is a clear fraud, which cannot be viewed lightly.
10. Learned counsel for appellant Sri.P.Ramakrishnan relied upon the following judgments in support of his contention:
W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:10:-
(i) R.Vishwanatha Pillai v. State of Kerala [(2004) 2 SCC 105] This is a case in which Supreme Court held that if an appointment is procured against a reserved post by producing a false certificate, the appointment is void and nonest. Paragraphs 13, 15 and 19 are relevant, which read as under:
"13. We do not find any substance in this submission. The misconduct alleged against the appellant is that he entered the service against reserved post meant for a Scheduled Caste/Scheduled Tribe on the basis of a false caste certificate. While appointing the appellant as Deputy Superintendent of Police in the year 1977, he was considered as belonging to the Scheduled Caste. This was found to be wrong and his appointment is to be treated as cancelled. This action has been taken not for any misconduct of the appellant during his tenure as civil servant but on the finding that he does not belong to the Scheduled Caste as claimed by him before his appointment to the post. As to whether the certificate produced by him was genuine or not was examined in detail by KIRTADS and the Scrutiny Committee constituted under the orders of this Court. The appellant was given due opportunity to defend himself. The order passed by the Scrutiny Committee was upheld by the High Court and later on by this Court. On close scrutiny of facts, we find W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:11:- that the safeguard provided in Article 311 of the Constitution that the government servant should not be dismissed or removed or reduced in rank without holding an inquiry in which he has been given an opportunity to defend himself, stands complied with. Instead of departmental inquiry, the inquiry has been conducted by the Scrutiny Committee consisting of three officers, namely: (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the Department concerned, (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 having intimate knowledge in the verification and issuance of the social status certificates, who were better equipped to examine the question regarding the validity or otherwise of the caste certificate. Due opportunity was given to the appellant to put forth his point of view and defend himself. The issuance of a fresh notice under the Rules for proving the same misconduct which has already been examined by an independent body constituted under the direction of this Court, the decision of which has already been upheld up to this Court would be repetitive as well as futile. The second safeguard in Article 311 that the order of dismissal, removal and reduction in rank should not be passed by an authority subordinate to that by which he was appointed has also been met with. The impugned order terminating the services of the appellant has W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:12:- been passed by his appointing authority."
"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 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 W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:13:- 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 after retirement flows from a valid W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:14:- 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."
(ii) Reliance is placed on Bank of India v. Avinash D. Mandivikar [(2005) 7 SCC 690]. This was also an instance where Supreme Court considered the question where an employee W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:15:- obtained appointment in the service on the basis that he is a Scheduled tribe. Para 6 and 11 are relevant, which read as under:
"6. Respondent 1 employee obtained appointment in the service on the basis that he belonged to a Scheduled Tribe. When the clear finding of the Scrutiny Committee is that he did not belong to the Scheduled Tribe, the very foundation of his appointment collapses and his appointment is no appointment in the eye of the law. There is absolutely no justification for his claim in respect of the post he usurped, as the same was meant for a reserved candidate."
"11. We find the conclusions of the High Court to be contradictory. On one hand the High Court faulted the reference which was made after about ten years and on the other hand accepted the findings of the Scrutiny Committee that Respondent 1 did not belong to a Scheduled Tribe as was held by the Scrutiny Committee. Mere delay in making a reference does not invalidate the order of the Scrutiny Committee. If the High Court felt that the reference was impermissible because of long passage of time, then that would have made the reference vulnerable. By accepting the findings of the Scrutiny Committee that Respondent 1 employee did not belong to a Scheduled Tribe, the observations about the delayed reference lose significance. The matter can be looked into from W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:16:- another angle. When fraud is perpetrated the parameters of consideration will be different. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. This Court in Bhaurao Dagdu Paralkar v. State of Maharashtra dealt with the effect of fraud. It was held as follows in the said judgment: (SCC pp. 613-14, paras 12-16) "12[14]. ... `Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false.' * * * 13[15]. This aspect of the matter has been considered by this Court in Roshan Deen v. Preeti Lal, Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education, Ram Chandra Singh case and Ashok Leyland Ltd. v. State of T.N. 14[16]. Suppression of a material document would also amount to a fraud on the court. (See Gowrishankar v. Joshi Amba Shankar Family Trust and S.P. Chengalvaraya Naidu case.) 15[17]. `Fraud' is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav case.
16[18]. In Lazarus Estates Ltd. v. Beasley Lord W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:17:- Denning observed at QB pp. 712 and 713 : (All ER p. 345-C) `No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.' In the same judgment Lord Parker, L.J. observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. (p. 722) [19]. These aspects were recently highlighted in State of A.P. v. T. Suryachandra Rao."
Therefore, mere delayed reference when the foundation for the same is alleged fraud does not in any way affect the legality of the reference."
(iii) In Addl. General Manager-Human Resource, Bharat Heavy Electricals Ltd. v. Suresh Ramkrishna Burde [(2007) 5 SCC 336], Supreme Court took almost a similar view which is reflected in paras 13 and 14 of the judgment, which read as under:
"13. The principle, which seems to have been followed by this Court is, that, where a person secures an appointment on the basis of a false caste certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his services are liable to be terminated. However, where a person has got admission in a professional course like engineering or MBBS and has W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:18:- successfully completed the course after studying for the prescribed period and has passed the examination, his case may, on special facts, be considered on a different footing. Normally, huge amount of public money is spent in imparting education in a professional college and the student also acquires the necessary skill in the subjects which he has studied. The skill acquired by him can be gainfully utilised by the society. In such cases the professional degree obtained by the student may be protected though he may have got admission by producing a false caste certificate. Here again no hard-and-fast rule can be laid down. If the falsehood of the caste certificate submitted by the student is detected within a short period of his getting admission in the professional course, his admission would be liable to be cancelled. However, where he has completed the course and has passed all the examinations and acquired the degree, his case may be treated on a different footing. In such cases only a limited relief of protection of his professional degree may be granted."
14. In the case in hand the respondent got appointment on 31-5-1982 on a post, which was reserved for a member of Scheduled Tribe. On receiving complaints the employer referred the matter to the District Collector, Nagpur and also to the Scrutiny Committee in March 1991. The subsequent period has been spent in making W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:19:- enquiry and in litigation as the respondent filed three writ petitions. In view of the principle laid down by this Court we are clearly of the opinion that his services were rightly terminated by the appellant and the High Court was in error in directing his reinstatement. The order passed by the High Court, therefore, has to be set aside."
11. Sri.Vijayamohanan, learned counsel for petitioner however placed reliance on the judgment of the Apex court in State of Jharkhand v. Jitendra Kumar Srivastava [2013 (3) KLT 782 (SC)], wherein, Supreme Court was considering a case whether in the absence of any provision in the pension rules, State Government can withhold a part of the pension or gratuity during the pendency of departmental proceedings. It was held that a person cannot be deprived of his pension without authority of law which is a constitutional mandate enshrined in Article.300 A of the Constitution of India. The Apex court in the above judgment placed reliance on a Constitution Bench judgment in Deokinandan Prasad v. State of Bihar [(1971) 2 SCC 330] wherein it was held that, the right to receive pension was recognized as right to property. It is argued that the petitioner W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:20:- who had all along worked in the bank cannot be deprived of pension when the termination is treated to be illegal.
12. Another judgment relied upon is that of the learned Single Judge in Prakash v. State of Kerala (supra) wherein while considering the scope and effect of Section 11(1) of the 1996 Act, the learned Single Judge held at paras 13 to 16 as under:
"13. Another aspect to be considered in this case is whether any action could be initiated against the petitioner to cancel his appointment at this distance of time. The advice of a candidate can be cancelled by the Public Service Commission within one year of the date of advice, in the light of R. 3(c) of Part II of the Kerala State and Subordinate Services Rules. There may be cases where a candidate may be advised out of turn by mistake while applying the communal rotation. Such wrong advices can be cancelled or corrected only within one year from the date of advice. In the case at hand, the case of the respondents is that the petitioner is a member of the Scheduled Caste. So he has been wrongly advised in the turn of Scheduled Tribe. But normally an advice, even if it is found to be wrong, cannot be modified or withdrawn after the lapse of one year, on the strength of any executive order. But in view of Ext. W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:21:- P52 Act, the Government have got ample powers to take appropriate action to cancel the appointment, provided the jurisdictional preconditions stated therein are present. S. 11 of Act 11 of 1996 is the enabling provision by virtue of which the Government can cancel any caste certificate. S. 11 (1) reads as follows:-
"11. Cancellation of false community certificate -
1) Where, before or after the commencement of this Act, a person not belonging to any of the Scheduled Castes or the Scheduled Tribes has obtained a false community certificate to the effect that either himself or his children belongs or belong to such Caste or the Tribe, the Scrutiny Committee may either suo motu or on a written complaint or report by any person or authority, call for the records and enquire into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall, by order, cancel the certificate after giving the person concerned an opportunity of making a representation, if any." (emphasis supplied) The jurisdictional pre-condition for taking action under S. 11(1) is that a person not belonging to any of the Scheduled Castes or Scheduled Tribes has obtained a false community certificate fraudulently. So, the action is contemplated not against the members of the Scheduled Caste or Scheduled Tribe but against strangers who claim fraudulently W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:22:- that they belong to the Scheduled Caste or the Scheduled Tribe. In the case at hand, even according to the respondents, the petitioner is a member of the Scheduled Caste. It appears that the provisions of the Act are not meant for dealing with the case of a member of the Scheduled Caste claiming S.T. status or vice-versa (See the provisions employing similar words in S. 3 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. The atrocities committed by third parties on the members of the SC/ST alone are covered by this Act. In other words, a member of the SC/ST cannot be accused of an offence under this Act).
14. Further, no-one has a case that the petitioner has acted fraudulently. The worst allegation against him in Ext. P7 is that he has made a false claim. The dictionary meaning of "false" is, wrong, incorrect, not genuine, artificial, sham, pretended etc. But the dictionary meaning of "fraud" is, deceiving somebody illegally in order to make money or obtain goods, and that of "fraudulent" is, deceitful or dishonest. "Fraudulent" is the adjective and "fraudulently" is the adverb. 'Deceit' involves deliberate misleading.
15. In the case at hand, the petitioner has been admitted in Standard I by his parents in Kattachira Tribal School with his caste as Malay Uraly. The petitioners' parents were residing in the Tribal colony. Both of them underwent training in a Craft W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:23:- Training Centre for Tribals and they were admitted in the Centre as persons belonging to Uraly (Scheduled Tribe) community. This will be evident from Ext. P9. So, the petitioners' parents even at their young age were claiming that they belong to Uraly (Scheduled Tribe) community. The petitioner was admitted by them in the school when he was a minor aged about 5 years. According to the official respondents, the petitioner's grandfather was a headman of Kuravas, locally known as 'Uraly' and he started making the alleged false claim of being a member of the Uraly Scheduled Tribe. It is also alleged that he used his residence in the tribal settlement as a ground for putting forward his claim. The alleged sin dates back to the days of petitioner's grandfather. So, admittedly, the petitioner's claim was not something invented by him. The religion or caste of a child is what he is told by his parents. He has no free choice in that. Since his school records including the SSLC book showed that he is Malay Uraly, he applied for the post of Under Secretary as one belonging to the Scheduled Tribe. Since Malay Uraly was treated as Uraly, the competent authority (the Tahsildar) issued Ext. P22 certificate. A person like the petitioner who applies for a post in the public service cannot go to the KIRTADS and request them to make a genealogical study and tell him the correctness of his caste claim and thereafter submit an application for employment relying on W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:24:- such a certificate. The petitioner has done what any other candidate would do, ie., he relied on the caste status mentioned in the school records and in the certificate issued by the competent authority. So, he cannot be accused of having done anything "fraudulently". Ext. P52 Act, it appears, is not meant to deal with every mistaken claim of caste, especially made by a member of the SC/ST.
16. Anyway, I am not finally pronouncing on the jurisdiction of the Scrutiny Committee or the Government to take action under Act 11 of 1996 because so far as the concerned authorities have not initiated any proceedings under the said Act. The petitioner has prayed for a declaration that respondents 2 to 4 have no authority or jurisdiction to determine the caste status of the petitioner under Ext. P52 Act. The contentions of the petitioner in this regard are kept open and he may urge them, in case the Government or any other competent authority proceeds against him under Ext. P52. So it is not necessary to finally decide whether the provisions of the Act are attracted in the case of the petitioner."
It seems that the learned Single Judge in the present case has also taken a view based on Prakash (supra).
13. Another judgment relied upon is Anila K.K. v. State of Kerala (2009 (3) KHC 986). That was a Division Bench W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:25:- judgment in which it was held that when the appellants got employment on the basis of valid orders then in force and thereafter it was found that the basis of the orders were wrong, denial of Scheduled tribe status will only operate prospectively. That was a case in which based on enquiry conducted by the Scrutiny Committee, it was held that the petitioner claimed that she belongs to Hindu Mala Araya community and her father was a Scheduled tribe. They got the benefits of members of Scheduled tribe community. When some dispute was raised regarding the caste status of the petitioner, the Division Bench of this Court declared that the petitioners will be entitled to get the benefits of Government Order dated 25/1/1977 in view of the fact that their mother belongs to Scheduled Tribe. Further, the Division Bench observed that there was no fraud played by the petitioners. It is in that background, it was held at para 7 as under: "7. But we notice that in view of document No. 78
(judgment in O.P.274/1980 dated 30.10.1980) of this Court the petitioners mother got a declaration in her favour that she belongs to scheduled tribe Malayaraya community and this Court further ordered to grant the benefit of that declaration to W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:26:- her children also. Thereafter the caste shown in the records of her children who are appellants herein were corrected and they were granted educational benefits. Such correction enabled them to get employment also under the scheduled tribe community. Annexure A judgment of Division Bench of this Court also upheld the rights of the appellants in this regard. Therefore, we notice that the appellants got employment and various service benefits on the strength of the valid orders then in force, though, now it is found that the basis of those orders was wrong. We also notice that in this case there is no fraud played from the part of the petitioners and the principles laid down by this Court in the judgment reported in Prakash v. State of Kerala (2002 (2) KLT 580) will be applicable in this case. We feel that denial of scheduled tribe status to the appellants will operate only prospectively from the date of issuance of Annexure B. The benefits accrued to them till the date of Annexure B shall not be disturbed. In other words the employment secured by them or any promotions granted to them shall not be cancelled or disturbed, but from the date of Annexure B order, the appellants are not entitled to get any benefit available to members of the scheduled tribe. If any benefit like promotion is given to appellants 2 and 3, the same can be cancelled by the competent authority. It is also ordered that the petitioners or their children are not entitled to claim any benefit W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:27:- available to scheduled tribes from the date of Annexure B."
Having regard to the aforesaid factual circumstances involved in the matter, we are of the view that the facts of the present case do not instill confidence in the court to arrive at a finding that there was no fraud played in the matter. Petitioner in fact admits the fact that he belongs to Scheduled Caste community and he obtained a certificate as Scheduled tribe for the purpose of employment. Even assuming for the sake of argument that the entry in the SSSLC certificate was not on account of their deliberate act, still having known about their caste status, if a wrong representation is made and an employment is secured, which is reserved for Scheduled Tribe community, the same is nothing but fraud. This aspect of the matter was completely ignored by the learned Single Judge and therefore the finding in that aspect is perverse and is liable to be set aside.
14. That apart, learned Single Judge seems to have relied upon the opinion expressed in Prakash (supra). We do not agree with the law laid down in Prakash (supra). Section 11 has been interpreted by the learned Single Judge in Prakash (supra) by W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:28:- directing that the jurisdiction under Section 11 can be invoked when a person not belonging to any Scheduled Caste/Scheduled Tribe has obtained a false certificate fraudulently. Learned Single Judge proceeded to find that the provisions of the Act are not meant for members of Scheduled Caste or viceversa. As already indicated, Section 11 applies if a person not belonging to Scheduled Caste or Scheduled Tribe has obtained a false community certificate to the effect that he belongs to such caste or tribe. The words "such caste or the tribe" clearly indicate that the word "caste" is intended for Scheduled Caste community and the word "tribe" is intended for Scheduled Tribe community. In other words, the intendment of the provision is that a "Scheduled Caste community person can only obtain a certificate that he belongs to Scheduled Caste community and a person belonging to Scheduled Tribe community shall obtain a certificate only to the effect that he belongs to Scheduled Tribe community. The restriction is for obtaining a "false community certificate". Thereafter, the scrutiny committee shall enquire into the correctness of the certificate and if it is of the opinion that the W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:29:- certificate is obtained fraudulently, it shall by order cancel the certificate. Further, Section 15A, which was incorporated w.e.f. 01/02/2007 is an answer to the finding of the learned Single Judge that Section 11 has no application in a case where a Scheduled caste member so obtains such certificate as Scheduled Tribe. Section 15A provides for a penalty, if a person belonging to a Scheduled caste obtains fraudulently a community certificate that he belongs to any Scheduled tribe or if a Scheduled tribe member obtains community certificate that he belongs to a Scheduled caste, he shall on conviction be punishable with rigorous imprisonment as mentioned therein. When Section 15A is incorporated, it clearly indicates the legislative intend as provided under Section 11 and therefore a contrary view cannot be taken in the matter. Therefore, Prakash's case (supra) to that extent is wrongly decided and is not good law.
15. Next question is whether an act of fraud is required to be proved. As already held, fraud connotes different angles. In this case, it is an admitted fact that the certificate is false which is required to be cancelled or corrected. As far as the employer is W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:30:- concerned, Section 8A(2) applies wherein it is clearly indicated that when an intimation is received that the certificate is not genuine, the appointing authority, local authority or the head of the institution, as the case may be, shall cancel the appointment without any further notice to the person concerned and debar him from continuing in office in order to invoke Section 8A(2). It is enough that the community certificate issued in support of the ST claim of the individual is not genuine. In other words, to invoke Section 8A(2), there is no necessity to arrive at a finding that fraud was committed. In the said circumstances, we are of the view that the learned Single Judge was not justified in disposing of the writ petition quashing the order of termination and directing an enquiry to be conducted in the matter.
16. As held by the Apex court in the judgments cited above, especially R. Viswanatha Pillai (supra), Avinash D Mandivikar (supra) and Suresh Ramkrishna Burde (supra), the appointment based on a caste certificate which is not genuine is void and nonest and therefore no further enquiry is required in the matter.
W.A. Nos. 1954 & 2470 of 2015 & Cont.Case No. 1268 of 2015 -:31:-
17. Hence, we allow the writ appeals and set aside the judgment dated 20/3/2015 in WP(C) No. 11146/2009.
Cont.Case No.1268/2015 has been filed alleging non compliance of the directions issued by the learned Single Judge. Since we have already set aside the judgment of the learned Single Judge, there is no reason to proceed with the contempt case and accordingly, the same is dropped.
Sd/-
ASHOK BHUSHAN, CHIEF JUSTICE Sd/-
A.M. SHAFFIQUE, JUDGE Rp //True Copy// PS to Judge