K. Viswanatham v. Chief Commissioner of Income Tax, Hyderabad
2001-10-30
S.B.SINHA, V.V.S.RAO
body2001
DigiLaw.ai
SATYABRATA SINHA, CJ. ( 1 ) THIS writ petition is directed against a judgment dated 17th July, 2001 passed by the Central administrative Tribunal in OA No. 864 of 200, whereby and whereunder the original application filed by the petitioner herein was dismissed. In the said original application, the petitioner had questioned an order dated 18. 6. 2001 passed by the Chief commissioner of Income Tax in terms whereof the services of the petitioner have been terminated on the ground that he was appointed as a Scheduled Tribe candidate belonging to Wanjari Community, despite issuance of G. O. Ms. No. 44, dated 23. 2. 1979 deleting the said community from the schedule Tribe. ( 2 ) THE petitioner joined as Lower division Clerk in the Income Tax department through direct recruitment under sports quota on 18. 1. 1978. He was selected as Upper Division Clerk in the year 1979 as a departmental candidate under sports quota. It is not in dispute that by reason of G. O. Ms. No. 245, Social Welfare department, dated 30. 6. 1977, Wanjari community was included as a Scheduled tribe. Pursuant to or in furtherance thereof, the Tahsildar, Hyderabad (Urban) Taluk issued a Social Status Certificate bearing letter No. L. Dis. A8/303/78 dated 22. 9. 1978 in favour of the petitioner certifying that he belongs to the Wanjari Community. It is also not in dispute that G. O. Ms. No. 44 was issued on 23. 2. 1979 by the Government of andhra Pradesh in terms whereof, G. O. Ms. No. 245, dated 30. 6. 1977 was amended, as a result whereof, Wanjari Community was excluded as a Scheduled Tribe. The petitioner was selected as an Inspector of income-tax as a departmental candidate in the year 1982. He passed the requisite tests for promotion in the year 1989 and promoted to the post of Income-Tax Officer in 1991. ( 3 ) WHILE so, a show-cause notice was issued upon the petitioner by the Joint collector, Hyderabad District on 25. 3. 1996 directing him to produce his entire educational record, caste certificate etc. , produced by him at the time of his entry into the Government service and also to show-cause as to why the Scheduled Caste certificate issued to him by the then tahsildar dated 22. 9. 1978 should not be cancelled.
3. 1996 directing him to produce his entire educational record, caste certificate etc. , produced by him at the time of his entry into the Government service and also to show-cause as to why the Scheduled Caste certificate issued to him by the then tahsildar dated 22. 9. 1978 should not be cancelled. The petitioner filed an explanation stating that he did not possess any bogus caste Certificate inasmuch as the certificate granted by the Tahsildar was a valid one. He also stated that he had already surrendered the original of the Caste Certificate issued by the Tahsildar, Hyderabad Urban Tulak, despite the said explanation, the Joint collector without going into the merit of the matter passed the following order cancelling the Caste Certificate:"the explanation submitted by the incubment is not satisfactory. Subsequently, the government have issued amendment orders in G. O. Ms. No. 44, Social Welfare department dated 23. 2. 1979 with reference to the Director of Tribal Welfare, Andhra pradesh, Hyderabad Letter No. 14909/78/113, dated 19. 12. 1978, amending the G. O. Ms. No. 245, Social Welfare Department, dated 30. 6. 1977 as follows:- amendment "in Annexure-II to G. O. Ms. No. 245, Social welfare Department dated 30. 6. 1977 the word "wanjari" occurring in Col. No. (5) against SI. No. 24 in Col. No. (l) thereof shall be omitted. " in view of the above amendment, the incumbent shall not come under S. T. Category as "wanjari" community since the said caste has been omitted from the S. T. Category. As such under the powers vested in G. O. Ms. No. 282 Social Welfare (J) Department, dated 19. 12. 1988,1 hereby cancel the Wanjari scheduled Tribe Caste Certificate bearing no. L. Dis. A8/303/78, dated 22. 9. 1978 issued in favour of Sri K. Vishwanadham, S/o. K. Anjaneyulu by the then Tahsildar, Hyderabad urban Taluk. " ( 4 ) A bare perusal of the aforementioned order clearly shows that no finding was arrived at therein by the Joint Collector that the petitioner herein had played fraud upon the Government for the purpose of obtaining a job on the basis of the bogus Caste certificate or otherwise. Pursuant to or in furtherance of the said order the impugned order dated 38. 6.
Pursuant to or in furtherance of the said order the impugned order dated 38. 6. 2001 has been passed by the respondent herein terminating the services of the petitioner, operative portion of which reads:"whereas, on the basis of amendment orders in G. O. Ms. No. 44, Social Welfare department dated 23. 2. 1979 with reference to the Director of Tribal Welfare, Andhra pradesh, Hyderabad Letter No. 14909/78/ 113, dated 19-12-1978, amending the G. O. Ms. No. 245, Social Welfare Department, dated 30. 6. 1977, the Joint Collector and additional District Magistrate, Hyderabad, vide his proceedings in Order No. D. Dis. No. 25/3603/1995, dated 20. 6. 1996, cancelled the Scheduled Tribe Certificate obtained by Sri K. Viswanadham. Whereas, when the proceedings of the joint Collector and District Magistrate were served on Sri K. Viswanadham, he vide his letter dated 5-8-1996 has stated that his present status may be treated as "wanjari backward Class" Which is admission of the fact that he does not belong to Scheduled tribe category, w. e. f 23-2-1979. Now, therefore, in view of the facts of the case, the services of Sri K. Viswanadham, income Tax Officer, are hereby terminated with immediate effect. " ( 5 ) THE said order would also disclose that no finding had been arrived at to the effect that the Caste Certificate obtained by the petitioner was not a valid one or he had committed any fraud at the time of entry into service. Questioning the aforementioned order dated 18. 6. 2001, the original Application was filed before the learned Central Administrative Tribunal. The learned Tribunal, however, relying on the decision of [he Apex Court in Director of Tribal Welfare v. Laved Giri, AIR 1995 sc 1506 , as also another Division Bench decision of this Court in A. Swarajyalakshmi v. Registrar General of India (Census), 2001 (2) ALD 223 - 2001 (2) ALT 258 (DB), came to the conclusion that when a person had secured benefits on the basis of a false community certificate, there is no need to afford him an opportunity of hearing. ( 6 ) MR. Nooti Rama Mohana Rao, learned Counsel appearing on behalf of the writ petitioner submits that having regard to the fact that his client was not being guilty of obtaining a Social Status certificate by taking recourse to any fraudulent method, the impugned judgment must be held to be bad in law.
( 6 ) MR. Nooti Rama Mohana Rao, learned Counsel appearing on behalf of the writ petitioner submits that having regard to the fact that his client was not being guilty of obtaining a Social Status certificate by taking recourse to any fraudulent method, the impugned judgment must be held to be bad in law. The learned counsel would contend that in the aforementioned fact-situation, the principles of natural justice ought to have been complied with as the petitioner had suffered civil consequences thereby. The learned counsel relied upon a Division Bench decision of this Court in K. Rajaiah v. State of A. P. , 1998 (6) ALD 500 (DB), as also another unreported Division Bench decision of this Court dated 28th August, 2000 passed in W. P. No. 9724 of 1998 in support of his contentions. ( 7 ) THE learned Counsel appearing on behalf of the respondent, submits that keeping in view the fact that G. O. Ms. No. 44 was issued as far back as 23. 2. 1979 deleting the Wanjari community from the schedule, the petitioner could not have claimed any exemption while taking the examination for the post of Inspector of income Tax in the year 1982. The learned counsel has relied upon the decision in the laveti Giri s case (supra) and A. Swarajyalakshmi"s case (supra) in support of his contention. ( 8 ) THE terminology fraud has a definite connotation. It means deceit. An element of ill motive is embedded in it. It is not in dispute that initial entry of the petitioner was not an illegal one. It is also not in dispute that the petitioner did not withhold any information at the time of initial entry into service. The question as to whether the petitioner was aware of the subsequent notification issued by the State being G. O. Ms. No. 44, dated 23. 2. 1979 and had understood the implications, thereof or not, in our opinion, requires serious consideration at the hands of the appropriate authority. It was not a fit case where the official respondent herein should have directed termination of the services of the petitioner having regard to the decision of the Apex Court in Lavati Giri s case (supra ). It is not the case of the respondent that the certificate granted by the Tahsildar was a bogus one.
It was not a fit case where the official respondent herein should have directed termination of the services of the petitioner having regard to the decision of the Apex Court in Lavati Giri s case (supra ). It is not the case of the respondent that the certificate granted by the Tahsildar was a bogus one. When the aforementioned status certificate was granted by the tahsildar, it is axiomatic, the petitioner was entitled thereto in terms of G. O. Ms. No. 245, dated 30. 6. 1977. Genuineness or otherwise of the said certificate is not in question. We are, therefore, of the opinion that it is not a case where the decision of Lavati Giri s case (supra) will have any application. In a. Swarajyalakshmi s case (supra) the petitioner claimed herself to be a member of the Scheduled Tribe community by marriage. It was found as of fact that even her husband did not belong to the Scheduled Tribe community and he obtained the certificate from a Member of the Legislative Assembly, who has no jurisdiction to issue such a certificate. Following her husband, she had also obtained a similar certificate. In the aforementioned fact-situation, this Court, following the decision of the Apex Court in mrs. Valsamma Paul v. Cochin University, air 1996 SC 1011 , and other decisions, came to the conclusion that she was not a member of the Scheduled Tribe community and in any event, as the Status Certificate issued in favour of her husband has already been cancelled, the principles of natural justice need not be complied with. Such is not the position in the instant case in k. Rajaiah s case (supra), a Division Bench of this Court, in a similar situation, while observing that there was no deliberate misrepresentation or fraud on the part of the petitioner in obtaining the ST Certificate held:"in our view the authorities should have followed the latter one that too after giving opportunity of hearing to the petitioner including to lead evidence and to examine any other witnesses to show that he did not obtain promotion by making misrepresentation or piaying fraud. "to the same extent is the unreported decision dated 28th August, 2000 passed by a Division Bench of this Court in WP no. 9724 of 1998, as already noticed hereinbefore.
"to the same extent is the unreported decision dated 28th August, 2000 passed by a Division Bench of this Court in WP no. 9724 of 1998, as already noticed hereinbefore. ( 9 ) FOLLOWING the aforementioned division Bench judgments, we are of the opinion that the respondent herein should have complied with the principles of natural justice before passing the impugned order. There cannot be any further doubt whatsoever that the respondent herein even as a disciplinary authority, keeping in view the peculiar fact-situation obtaining in the instant case, will have to consider the question as to whether even if the petitioner had knowledge of issuance of the aforementioned G. O. Ms. No. 44, dated 23. 2. 1979, as his initial entry into the government service being not illegal, an order of dismissal would be justified. Unfortunately, the learned Tribunal did not consider the aforementioned question at all. ( 10 ) IT is now well settled principles of law that a statutory authority or a tribunal must pose unto itself a correct question in order to arrive at a correct conclusion of facts so as to enable itself to apply the correct principles of law. In Secretary of slate v. Tameside. (1976) 3 A1i. ER 665 at p. 695 Lord Diplock L. J. , observed:"a relevant question to which in the Secretary of State should have directed his mind was the extent to which head teachers would be likely to persist in a policy of non-cooperation if he him self was known to have declined to stop the council from proceeding with their plan. There is no suggestion in the letter, nor in either of the affidavits sworn on his behalf by mr. Jenkins, that the Secretary of State ever directed his mind to this particular question or formed any view about it. Indeed, it is not until the second affidavit that it is disclosed that the teachers trade union had been Wariling directly to the department on the matter at all.
Jenkins, that the Secretary of State ever directed his mind to this particular question or formed any view about it. Indeed, it is not until the second affidavit that it is disclosed that the teachers trade union had been Wariling directly to the department on the matter at all. it-is not for a Court of law to speculate how the Secretary of State would have answered that question had he directed his mind to it, although like others of your Lordships and members of the court of appeal, I find it difficult to believe that responsible head teachers, regardful of the interests of their pupils, would have persisted in a refusal to do their best to make the selection procedure work fairly and effectively if the Secretary of State had made it clear to them by his decision that he was not prepared himself to interfere with the Council s proceeding with its plans. Assuming, however, that he had formed the view that co-operation by head teachers was likely to be only partial so that the selection process would be liable to greater possibility of error than where full co-operation could be obtained, the Secretary of State would have to consider whether the existence of such a degree of imperfection in the selection system as he thought would be involved was so great as to make it unreasonable conduct for the council to attempt to fulfil the mandate which they had so recently received from the electors. Again, there is no indication that the Secretary of State weighed these two considerations against one another. " ( 11 ) AS the learned Tribunal did not pose unto itself the correct questions, it must be held to have misdirected itself in law. ( 12 ) FOR the aforementioned reasons, the Impugned judgment passed by the learned Tribunal, as also the impugned order dated 18. 6. 2001 passed by the respondent cannot be sustained. They are set aside and quashed accordingly. The respondent herein is directed to consider the matter afresh in accordance with law in the light of the observations made by us herein upon affording an opportunity of being heard to the writ petitioner. The writ petition is allowed. There shall be no order as to costs.