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2001 DIGILAW 610 (KER)

Gangadharan v. State of Kerala

2001-10-31

M.R.HARIHARAN NAIR

body2001
Judgment :- M.R. Hariharan Nair, J. The challenge in the Original Petition is with regard to Ext. P7 order passed by the Government of Kerala declaring that the petitioners herein, who are father and son, do not belong to the 'Mannan' Community, but belong to 'Agasa' Community which is only a Backward Community; that they are not entitled to the benefits available for Scheduled Tribes; and directing (i) recovery of all benefits granted to the petitioners as though they were members of the Schedule Tribe; (ii) that entries in the records and S.S.L.C. Book relating to the 2nd petitioner which show that the 2nd petitioner belong to 'Mannan' Community shall be corrected to the effect that he belongs to 'Agasa' Community; that T. Vijayalakshmi, daughter of the 1st petitioner (she is not a party to the present case) who has secured employment as though she belongs to 'Mannan' Community be retrenched from service; that the former Tahsildar, Kannur, by name Sri. C. Govindan Nambiar be proceeded against through disciplinary proceedings for giving false certificate to the 2nd petitioner that he belongs to'Mannan' Community and as such is a member of a Schedule Tribe and directing the Schedule Caste Development Officer, Kannur, and the Integrated Scheduled Caste Development Officer, Kannur, to give all assistance to the Tahsildar, Kannur for implementation of the said directions. 2. The learned counsel for the petitioners pointed out that the 1st petitioner was employed as Post Master until his retirement on 31.1.1990; that in the Admission Register concerned his caste had been recorded as 'Dhoby' ('Mannan'); that the caste of the 2nd petitioner is also recorded as 'Mannan' in the S.S.L.C. Book; and that in the circumstances, the findings entered in Ext. RI(a) order of the Kerala Institute for Research Training and Development Studies of Scheduled Caste and Scheduled Tribe (KIRTADS) are absolutely unjustified and for the same reason Ext. P7 which is the consequential order also has to fail. 3. The learned counsel further submits that under the Brochure on Reservation for Scheduled Castes and Scheduled Tribes in Services, the jurisdiction to pass orders with regard to the correct caste of Central Government employees in case of doubt is only the Ministry of Welfare (Scheduled Caste and Scheduled Tribes Division) and that Ext. RI(a) which has been passed by a different authority has no legal basis. RI(a) which has been passed by a different authority has no legal basis. It is also pointed out that the 2nd petitioner is an employee of the New India Assurance Company which is an instrument of the Central Government and as such he also cannot be proceeded with based on Ext. P7 order. Lastly, it is contended that in any event Ext.P7 has to fail because no notice had been issued to either of the petitioner before deciding to act upon Ext. RI(a) order based on an enquiry held behind the back of the petitioners. No opportunity was given to the petitioners to show cause against the drastic step of terminating the services of the 2nd petitioner as also his sister, who is a non-party and to recover the money equivalent to all the benefits that they have received. The learned counsel submits that the impact of Ext. P7 will be the ruin of a poor family. 4. During hearing, the learned counsel for the petitioners relied on certain findings in the Bench decision of this Court in O.P. No. 4351/81 to the effect that in view of the direction in CLI2.3 of the Brochure aforesaid, it is only the Central Government who is competent to decide the question. 5. I find no merit in the aforesaid submission. A perusal of Ext. RI(a) order shows that the proceedings commenced based on a Government letter dated 15.10.1990. it is conceded during hearing that as on the said date, the 1st petitioner was not in the service of the Central Government having retired on 31.1.1990 and that the 2nd petitioner also was not in the New India Assurance Company. He was then only an employee of the North Malabar Grameen Bank and as such neither of the petitioners were within employment under the direct jurisdiction of the Central Government. 6. Of course, based on the facts in O.P. No. 4351/81 this court had found that in the case of an instrumentality of the Central Government it is only the Central Government who under C1.12.3 of the aforesaid Brochure is competent to decide the question whether a person is a member of the Scheduled Caste or not. However, it is pointed out that based on Ext. However, it is pointed out that based on Ext. RI(b) letter the Ministry of Welfare, Government of India had addressed to Secretary, Scheduled Castes and Scheduled Tribes Development Department, Government of Kerala, with reference to the specific facts involved in the present Original Petition viz. whether the petitioners belong to 'Mannan' (Scheduled Caste) Community or 'Agasa' Community. The Central Government has stated therein that the said question is a matter for decision of the Kerala Government as the subject of issuance/ verification of caste/tribe certificate rests with them. Reference is also made therein to the contents of a letter from the Ministry of Welfare addressed to the Secretary, Scheduled Caste and Scheduled Tribes Development Department, Government of Kerala, Thiruvananthapuram, whereby the Central Government has opined that under C1.12.3 of the Brochure aforementioned, an enquiry before the issue of caste/tribe certificate can be done only by the concerned Revenue Officers of the State Government; that the Government of India simply issue the guidelines for the verification of the claims of the Scheduled Caste and Scheduled Tribes; that clause 12.3 of Chapter 12 of the Brochure is meant for the authorities like the Public Sector Undertakings to verify the certificates before the issue of the appointment letter and that the investigation by the Government of Kerala through its instrument would be proper in such matters. It cannot therefore be said that the State Government and (KIRTADS) are incompetent to go into the caste question involved here. 7. As regards the direction contained in O.P. No. 4351/81, it is stated that a Review Petition was filed with regard to the finding that only the Central Government is competent and that it was subsequently withdrawn as it was observed by this Court that the controversy can be raised in another Original Petition pending before this court. In any event, neither, of the petitioners being employees of the Central Government nor of any other instrumentality of the Central Government as on the date when the enquiry was ordered; it does not appear necessary that the matter should have been referred to the Central Government. 8. The Apex Court, while dealing with similar orders in Kumari Madhuri Patil v. Addl. 8. The Apex Court, while dealing with similar orders in Kumari Madhuri Patil v. Addl. Commissioner ((1994) 6 SCC 241) decided on 2.9.1994 that all State Governments should constitute a Committee of three officers, namely, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (2) the Director, Social Welfare/Tribal Welfare/ Backward Class Welfare, as the case may be, and (3) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in indentifying the tribes, tribal communities, parts of or groups of tribes or tribal communities could be in the Committee. In accordance with the said direction G.O.(P) No. 16/95 dated 8.5.1995 was passed constituting a Committee consisting of the Secretary to Government, Director, Social Welfare and the Director of the KIRTADS to go into the cases of dispute in Communities having relevance on the question whether a person is member of the Scheduled Caste or Scheduled Tribe. This was followed by the enactment of the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 (Act 11 of 1996) constituting Agency of experts for enquiry into such disputes and also enabling the Government to direct that the benefits secured on the basis of false Community Certificate can be withdrawn. There is also a Screening Committee for verification of Community Certificates received from members of the Scheduled Castes and Scheduled Tribes for admission to seats reserved for them besides a Scrutiny Committee for verification of such certificates. Thus, there is a regular machinery constituted by the Government of Kerala to go into the disputed questions as involved here and Ext. RI(a) order was passed by the competent authority. 9. The contention that Ext. RI(a) was passed behind the back of the petitioners and the enquiry was also behind their back has no substance since it is clear from the order itself that both the petitioners were served with registered notice on 19.11.1991 requesting them to appear before the Director of KIRTADS and to produce oral and documentary evidence in support of their claim. In fact, pages 34 and 36 forming part of Ext. In fact, pages 34 and 36 forming part of Ext. RI(a) clearly show that both the petitioners had turned up before the Director of KIRTADS as directed in the notice and filed statements asserting their claim. In fact, there is a mention in the letter which is document No.2 forming part of Ext. RI(a) that the 2nd petitioner had also given full details of his claim before the said authority. A perusal of Ext RI(a) shows that detailed investigation was made by the authority and that the findings have been based on proper data. In the circumstances, I do not find my way to upset the findings in Ext. Rl(a). 10. As regards the contention that Ext. P7 is violative of natural justice, I find some merit. The learned Government Pleader conceded, during hearing, that after the findings in Ext. RI(a) were entered, there was no further notice issued to the petitioners to show cause against the proposals ultimately effected as per Ext. P7. order. Thus, as already mentioned, Ext. P7 order would have wide impact on the life of the 1st petitioner and his children in so far as they would have to disgorge all the benefits availed by them and also would lose their means of livelihood i.e., employment. Such an action should not have been taken without hearing them. 11. In State of A.P. v, N. Chandrasekhara (AIR 1988 SC 1309) in an enquiry, the Commissioner of Social Welfare examined exhaustively the question whether any disability or untouchability was suffered by the petitioner who belongs to the Jangam Community. The Court found that the officer had made enquiries from several persons and recorded their statements without any notice to the petitioner therein and that the Commissioner has violated the rules of natural justice. The said decision, as such, does not apply to the present case because here is an enquiry done with the full knowledge of the petitioners and after considering their contentions raised in the reply statement. It cannot be said that in an enquiry of this nature the petitioners should be given opportunity to cross-examine all the witnesses. The machinery provided for by the Government of Kerala does not contemplate any such opportunities. of cross examination. 12. It cannot be said that in an enquiry of this nature the petitioners should be given opportunity to cross-examine all the witnesses. The machinery provided for by the Government of Kerala does not contemplate any such opportunities. of cross examination. 12. D.K. Yadav v. J.M.A. Industries Ltd., ((1993) 3 SCC 259) is authority for the proposition that there is a duty to give reasonable opportunity to be heard by the authority which has the power to take punitive or damaging action.. Even executive authorities which has to take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens must take care to see that justice is not only done; but manifestly appear to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice. Their act should be fair. It is also held therein that the procedure prescribed for depriving a person of livelihood would be liable to be tested on the anvil of Art.14 and that there can be no distinction between a quasi-judicial function and an administrative function for the purpose of applying principles of natural justice. The aim of both is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial inquiry and not to administrative inquiry. It was held that it must logically apply to both. 13. In the circumstances, I am of the view that the 1 st respondent went wrong in passing Ext. P7 order without affording an opportunity to the petitioners to show cause against the proposal for terminating their services and for recovery of monetary equivalent of all the benefits that they have enjoyed. The order, certainly, violates the principles of natural justice and it is, accordingly, struck down. Fresh notice will be issued to the petitioners to show cause against the proposals on the part of the Government based on Ext. Rl(a) finding. After such opportunity and also after granting an opportunity to the petitioners to be orally heard, the 1st respondent is free to pass fresh orders. Fresh notice will be issued to the petitioners to show cause against the proposals on the part of the Government based on Ext. Rl(a) finding. After such opportunity and also after granting an opportunity to the petitioners to be orally heard, the 1st respondent is free to pass fresh orders. The Original petition is allowed to the said extent.