Madras High Court
R.Balaguru vs The Chairman on 10 December, 2010
Author: D.Murugesan
Bench: D.Murugesan, Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.12.2010
CORAM
THE HONOURABLE MR.JUSTICE D.MURUGESAN
AND
THE HONOURABLE MR.JUSTICE VINOD K.SHARMA
W.P.No.18214 of 2010
R.Balaguru .. Petitioner
-vs-
1. The Chairman
Chennai Port Trust
Chennai
2. The Secretary
Chennai Port Trust
Chennai
3. The Chief Mechanical Engineer
Chennai Port Trust
Chennai
4. The Secretary and Chairman
State Level Scrutiny Committee
and Adi Dravida and Tribal Welfare Officer
3rd Floor, Secretariat
Fort St.George
Chennai 600 009
(R4 impleaded as per order dated
18.11.2010 in M.P.No.1 of 2010 in
W.P.No.18214 of 2010) .. Respondents
Petition filed under Article 226 of The Constitution of India, praying for the issue of a Writ of Mandamus, directing the respondents to pay (1) Wage Board arrears from 1.1.2007 upto 31.1.2010 i.e., for 37 months, (2) Overtime allowances including incentives for January, 2010, (3) Incentive for December, 2009 and January, 2010, (4) Provident Fund lying to the credit of my client's account, (5) Gratuity for the 30 years of service rendered, (6) Pension from 1.2.2010, (7) Commutation of Pension, (8) Earned Leave Encashment including EL and LHP and (9) Medical and other related benefits together with interest within a time to be fixed by this Hon'ble Court.
For Petitioner :: Mr.V.Vijay Shankar
For Respondents :: Mr.R.Karthikeyan for R1 to R3
Mr.M.Dhandapani
Special Government Pleader
for R4
ORDER
D.MURUGESAN, J.
The petitioner obtained the Kondareddi-Scheduled Tribe community certificate dated 5.3.79 from the Tahsildar, Mettur. On the strength of the said certificate, he was appointed as Chargeman in the respondent-Chennai Port Trust in the year 1980. After reaching 58 years of age and while working as Foreman, he was to retire on 31.1.2008. As there was enhancement in the retirement age, he continued in service and accordingly retired on 31.1.2010.
2. While he was in service, a complaint dated 18.9.92 was received by the respondent-Chennai Port Trust stating that the petitioner had secured employment by producing a false community certificate. The genuineness of that certificate was sought to be verified by the respondent-Chennai Port Trust and for that purpose, the District Collector was addressed on 23.12.92 to examine the certificate. Pursuant to the said request, the Revenue Divisional Officer, Mettur directed the petitioner to appear for enquiry on 13.6.94 and there were few adjournments. The petitioner questioned the proceedings pending before the Revenue Divisional Officer by filing W.P.No.14407 of 1994 on the ground that the Revenue Divisional Officer has no jurisdiction to go into the genuineness of the community certificate. While entertaining the writ petition, this Court granted an interim order of stay. Ultimately, the writ petition was dismissed on 19.6.2002 with a direction to complete the enquiry in terms of the directions issued by the Supreme Court in Kumari Madhuri Patil v. Additional Commissioner, Tribal Development and others, AIR 1995 SC 94.
3. Thereafter, the Revenue Divisional Officer again issued the notice dated 15.9.2005 to the petitioner directing him to appear for enquiry. That notice was again questioned by the petitioner by filing W.P.No.33930 of 2005 on the ground that he has no jurisdiction. That writ petition came to be disposed of on 19.1.2009 and the impugned notice of the Revenue Divisional Officer was set aside with a further direction to the petitioner to go before the State Level Scrutiny Committee, as the State Level Scrutiny Committee would alone be competent to verify the genuineness in terms of G.O.(2D) No.108, Adi Dravidar and Tribal Welfare (CV-I) Department dated 12.9.2007. The State Level Scrutiny Committee was also directed to pass orders within a period of four weeks from the date of receipt of the representation from the petitioner. It appears that the petitioner submitted a representation on 21.2.2009. According to the petitioner, the State Level Scrutiny Committee has not passed any final orders. In the meantime, the petitioner attained the age of superannuation and retired on 31.1.2010. Hence, he made a representation dated 5.2.2010 to the respondent-Chennai Port Trust to settle the following terminal benefits:
"(1) Wage Board arrears from 1.1.2007 upto 31.1.2010 i.e., for 37 months. (2) Overtime allowances including incentives for January, 2010. (3) Provident Fund lying to the credit of his account. (4) DCRG for the 30 years of service rendered. (5) Pension from 1.2.2010. (6) Commutation of Pension. (7) Earned Leave Encashment including EL and LHP."
4. As the said representation was not considered, the petitioner again sent a legal notice dated 24.5.2010. According to the petitioner, though the said legal notice was acknowledged, the respondent-Chennai Port Trust have not passed any order and therefore the petitioner is constrained to approach this Court seeking for a direction to the respondents to pay the above terminal benefits.
5. We have heard Mr.V.Vijay Shankar, learned counsel for the petitioner, Mr.R.Karthikeyan, learned standing counsel for the respondent-Chennai Port Trust and Mr.M.Dhandapani, learned Special Government Pleader for the State Level Scrutiny Committee.
6. According to Mr.V.Vijay Shankar, so long as the certificate of the petitioner has not been cancelled, the entitlement to the terminal benefits cannot be denied solely on the ground that the certificate is still to be verified. According to the learned counsel, the petitioner had put in nearly 30 years of service and therefore, he cannot be deprived of the terminal benefits.
7. Mr.M.Dhandapani, learned Special Government Pleader for the respondent-Committee, on instructions, would submit that the representation of the petitioner has not been disposed of, as the records relating to the representation and the consequential verification of the certificate are not traceable in the State Level Scrutiny Committee. He would also submit that the records relating to whether the certificate has been cancelled or not could not also be ascertained. For this submission, the learned counsel for the petitioner submitted that he has not received any communication so far from the State Level Scrutiny Committee cancelling the community certificate.
8. Mr.R.Karthikeyan, learned counsel for the respondent-Chennai Port Trust would submit that as the verification of the community certificate is still pending before the State Level Scrutiny Committee, the petitioner is not entitled to the terminal benefits and for the said proposition, he would rely upon the following judgments of the Supreme Court in R.Viswanatha Pillai v. State of Kerala and others, (2004) 2 SCC 105, Bank of India and another v. Avinash D.Mandivikar and others, (2005) 7 SCC 690 and Union of India v. Dattatray, s/o Namdeo Mendhekar and others, (2008) 4 SCC 612.
9. We have carefully considered the above submissions. The undisputed facts are that the petitioner was issued with the community certificate dated 5.3.79 by the Tahsildar, Mettur who was competent to issue such certificate at the relevant point of time. On the strength of such certificate, he secured employment in the Chennai Port Trust in the year 1984 and he had put in nearly 30 years of service in theChennai Port Trust. He was allowed to retire on 31.1.2010 on attaining the age of superannuation. Though the Chennai Port Trust, on receipt of the complaint in the year 1992, had sought for verification of that certificate, the said proceedings have not come to an end by any order for over a period of nearly 18 years. In fact, the certificate was dealt with by the Revenue Divisional Officer, who had no authority to scrutinize the Scheduled Tribe certificate and for that reason, this Court vide the order dated 19.6.2002 directed the competent authority to verify the genuineness of the certificate. Even thereafter, only the Revenue Divisional Officer had issued another notice that had led to the filing of another writ petition in the year 2005. That writ petition came to be dismissed by order dated 19.1.2009 directing the petitioner to send a representation to the State Level Scrutiny Committee. Accordingly, the petitioner has sent the representation as early as on 21.2.2009. That representation has not been disposed of so far.
10. On the above facts, the only question to be considered is whether the petitioner would be entitled to the relief of terminal benefits as prayed for in this writ petition? Mr.R.Karthikeyan, learned counsel for the respondent-Chennai Port Trust, in opposing the writ petition, would rely upon the judgment of the Supreme Court in R.Vishwanatha Pillai's case (supra) reported in 2004 2 SCC 105. In that case, the Supreme Court considered the case of a candidate who secured appointment in a post reserved for Scheduled Caste on the basis of the caste certificate which was later on found to be false and also considered the case of a student who secured admission to engineering course against a seat reserved for Scheduled Caste by producing a certificate which was later on cancelled as false. In that context, the Supreme Court held that if the appointment was secured by playing a fraud or deceit, such appointment is no appointment in the eye of law. Similarly, so far as the securing of admission was concerned, the Supreme Court after holding that the securing of admission on false certificate cannot be approved, nevertheless, as the student was admitted to the course by virtue of interim order of the High Court, no purpose would be served in withholding the declaration of result on the basis of the examination already taken by him or depriving him of the degree in case he passes the examination. Ultimately, the Supreme Court directed the results to be declared and he should be allowed to take the degree with the condition that he wouldl not be treated as a Scheduled Caste candidate in future either in obtaining service or for any other benefits flowing from the caste certificate. In our opinion, this judgment is not applicable to the facts of this case, as the above judgment was rendered where the community certificate was found to be false and accordingly was cancelled. But in this case, the community certificate issued in favour of the petitioner has not been cancelled so far.
11. Mr.R.Karthikeyan, learned counsel would again rely upon another judgment of the Supreme Court in Bank of India and another v. Avinash D.Mandivikar and others, (2005) 7 SCC 690. In the said judgment also, the Supreme Court has reiterated that if the appointment was made on the basis of the certificate which was later on found to be false, the very foundation of the appointment itself collapses and the same is no appointment in the eye of law. Here also the certificate has been cancelled and therefore the said judgment is not applicable to the facts of this case. He would also rely upon one more judgment in Union of India v. Dattatray, (2008) 4 SCC 612. In that case, the certificate of the employee was declared to be invalid. Nevertheless, the Supreme Court after noticing that the employee had submitted his resignation, it directed that no further action was required, except the payment of terminal benefits, but the pensionary benefits need not be paid. Even in that case, after noticing that the employee had resigned, the Supreme Court made that employee entitled to the terminal benefits except pensionary benefits. Hence, for the above reasons, all the judgments relied upon by the learned counsel for the respondent-Chennai Port Trust are not applicable to the facts of this case.
12. In Kumari Madhuri Patil v. Additional Commissioner, Tribal Development and others, (1994) 6 SCC 241, the Supreme Court, while considering the case of a person who had secured admission or appointment on the basis of false certificate, has 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 scrutinized at the earliest and with utmost expedition and promptitude."
By the above judgment, the Supreme Court had directed that the certificate produced at the time of admission or appointment should be scrutinized at the earliest and with utmost expedition and promptitude. In the given case, the appointment of the petitioner was during the year 1980. The respondent-Chennai Port Trust did not send the certificate of the petitioner for verification immediately. Nevertheless, on the ground that the complaint was received in the year 1992, the certificate was sought to be verified only in that year and factually the said certificate has not been cancelled even now. Hence, in our opinion, so long as the certificate of the petitioner has not been cancelled, the petitioner cannot be denied the service benefits and in that sense, the petitioner can claim the terminal benefits attached to his employment and the same cannot be denied. Mr.R.Karthikeyan, learned counsel for the respondent-Chennai Port Trust, however, would submit that in any case this Court directed the State Level Scrutiny Committee to consider and pass orders on the certificate and therefore the petitioner has to wait till such orders are passed. In our opinion, on the facts of this case, we are unable to agree with that contention. It is true that in the normal course, an employee whose certificate is sought to be verified cannot seek for the benefit on the ground that he has attained the age of superannuation and retired by the time, as he has to await the disposal of the application by the State Level Scrutiny Committee as to the genuineness of the certificate. In this case, we are not inclined to apply that general principle for the simple reason that the petitioner had put in nearly 30 years of service in the respondent-Chennai Port Trust and his certificate was sought to be verified only after 12 years and even thereafter, for the last 18 years, the certificate is not found to be false. Further, even after the directions of this Court and in compliance of the same, the petitioner had submitted his representation as early as on 21.2.2009, but the State Level Scrutiny Committee has not passed orders and therefore, on the peculiar facts of this case, we are inclined to allow the writ petition without waiting for the verification of the community certificate, as delaying the payment of terminal benefits would seriously prejudice and result in hardship to the petitioner. Accordingly, the writ petition is allowed. No costs. Consequently, M.P.No.1 of 2010 is closed.
Index : yes (D.M.,J.) (V.K.S.,J.)
Internet : yes 10.12.2010
ss
To
1. The Chairman
Chennai Port Trust
Chennai
2. The Secretary
Chennai Port Trust
Chennai
3. The Chief Mechanical Engineer
Chennai Port Trust
Chennai
4. The Secretary and Chairman
State Level Scrutiny Committee
and Adi Dravida and Tribal Welfare Officer
3rd Floor, Secretariat
Fort St.George
Chennai 600 009
D.MURUGESAN, J.
AND
VINOD K.SHARMA, J.
Order in
W.P.No.18214 of 2010
10.12.2010