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2004 DIGILAW 454 (GAU)

Sanik Lal Mukhiar v. Union of India

2004-08-03

B.BISWAS

body2004
JUDGMENT D. Biswas, J. 1. The Petitioner was working as Head Watchman in the FCI, Banderdewa. He was dismissed from service by the order dated 30.8.2002 issued by the Senior Regional Manager. Being aggrieved thereby, he has filed this petition. 2. I have heard Mr. G. Uzir, learned Counsel for the Petitioner and Mr. C. Choudhury, learned CGSC. 3. The Petitioner was appointed as Watchman in the year 1972 as a General Category candidate and, as such, the Petitioner was not shown as a member of the Scheduled Caste Community. Subsequently, the Petitioner claimed to be a member of the Scheduled Caste Community and indicated this in the Cardex Form. By this manipulation, he got the benefit of selection grade as well as promotion. He was asked to submit original Scheduled Caste certificate. The Petitioner did not produce the same and took the plea that all his household goods along with files containing the Scheduled Caste certificate were washed away in the flood of 1985. The FCI authority thereafter initiated the departmental proceeding and, on completion thereof, imposed the penalty of dismissal. 4. It is an admitted fact that the initial appointment of the Petitioner as watchman was not against any post earmarked for reserved category candidate. Therefore, there is nothing wrong with his initial appointment. The attempt made by him to pass off himself as a member of the Scheduled Caste Community was with the intention of getting mileage over others in the matter of promotion. 5. The Presenting Officer submitted a written brief (Annexure-E) before the Enquiry Officer. The brief indicates that the Presenting Officer was of the view that the caste certificate eventually produced by the writ Petitioner was genuine. The Presenting Officer also appeared to have recommended that the Petitioner be exonerated. The findings of the Enquiry Officer (Annexure-F) is that the charges framed against the Petitioner have been fully established. 6. The finding is based on the ground that the Petitioner filled up the Cardex Form (Ext. 2) claiming himself as a member of the Scheduled Caste and for that reason he was given the benefit of Selection Grade with effect fix) 18.6.1987 and promotion to the post of Head Watchman w.e.f. 15.11.1988. The Enquiry officer came to the conclusion that the Petitioner failed to prove that he belongs to Scheduled Caste Community. 2) claiming himself as a member of the Scheduled Caste and for that reason he was given the benefit of Selection Grade with effect fix) 18.6.1987 and promotion to the post of Head Watchman w.e.f. 15.11.1988. The Enquiry officer came to the conclusion that the Petitioner failed to prove that he belongs to Scheduled Caste Community. The photocopy of the Scheduled Caste certificate dated 7.12.1983 issued by the Assam Anusuchita Jati Parished has not been accepted by the Enquiry Officer on the ground that it has not been endorsed/counter signed by the Deputy Commissions, North Lakhimpur and that the original was not produced. 7. The burden is apparently on the writ Petitioner to prove that he belongs to Scheduled Caste Community. The Petitioner did not submit any certificate to that effect at the time of his initial entry in service in the year 1972. The Cardex Form was filled up by the writ Petitioner himself The Respondent authority should not have given him the benefit of selection grade and promotion without verifying the statement made by him in the Cardex Form. Be that as it may, the Petitioner should have endeavoured to obtain a duplicate certificate from the Deputy Commissioner, North Lakhimpur to prove his status as a member of the Scheduled Caste Community. Attempt ought to have been made by the writ Petitioner to examine any office bearer of the Assam Anusuchita Jati Parishad to prove his claim. The Petitioner failed to discharge his burden. 8. In para-3 of the judgment in G. Smdarasan, Petitioner v. Union of India and Anr. Respondents, AIR 1996 SC 668 , the Hon'ble Supreme Court held as follows: 3. We cannot appreciate this stand taken by the Petitioner. It is for the Petitioner to prove that he belongs to the scheduled caste specified in the Presidential Notification in relation to the State to which he belongs and was born. In S.S.L.C. register, the Petitioner did not claim his status as a scheduled caste. On the other hand, his father's name was mentioned as Ganga Naidu and he claimed to be Hindu. In those circumstances the certificate obtained from the Revenue Authorities in the year 1956 is obviously a false certificate. The above decision clearly suggest that the burden is with the Petitioner to prove that he belongs to Scheduled Caste Community as specified in the relevant notifications. 9. The decision in Dilip Kr. In those circumstances the certificate obtained from the Revenue Authorities in the year 1956 is obviously a false certificate. The above decision clearly suggest that the burden is with the Petitioner to prove that he belongs to Scheduled Caste Community as specified in the relevant notifications. 9. The decision in Dilip Kr. Sarkar, Petitioner v. State of Tripura and Ors., Respondents 1999 (2) GLT 390 is in relation to the validity of the cancellation of certificate without providing any opportunity of hearing. The judgment relied upon by Shri Uzir, learned Counsel for the Petitioner indicate that the said order of cancellation was held illegal since no opportunity of hearing was given. The case at hand is not on same foundation. The Petitioner was duly heard before the penalty was imposed. 10. Shri Uzir, learned Counsel for the Petitioner relied upon a decision of the Division Bench of this Court in Shri Ramapada Dhar, Petitioner v. The State of Assam and Ors., Respondents (1989) 1 GLR 117 . It has been held by the Division Bench that the caste certificate issued by the Deputy Commissioner cannot be questioned by any other authority. On the factual matrix, this decision appears to have no nexus with the issue at hand. The decision in Laxmi Kanta Dass, Petitioner v. State of Tripura and Ors., Respondents (1995) 3 GLR 431 : 1996 (1) GLT 34 is also based on the same premises. It, therefore, appears that the Enquiry Officer made no mistake in coming to the conclusion that the charges labelled against the writ Petitioner was established. 11. Shri Uzir, learned Counsel for the Petitioner submitted that the writ Petitioner is due to retire within a year and, therefore, the penalty of dismissal at this stage of life would result in insurmountable difficulties. Considering this submission, I am of the opinion that the penalty of compulsory retirement with direction for recovery of the excess pay drawn on account of his elevation to selection grade and subsequent promotion would meet the ends of justice. 12. In the result, the writ petition is allowed and the penalty of dismissal issued by the order dated 30.8.2002 is set aside. The Petitioner be reinstated in service forthwith and the Respondent authority shall consider and pass orders imposing the penalty as indicated above. 12. In the result, the writ petition is allowed and the penalty of dismissal issued by the order dated 30.8.2002 is set aside. The Petitioner be reinstated in service forthwith and the Respondent authority shall consider and pass orders imposing the penalty as indicated above. The Respondent authority before imposing the penalty, as aforesaid, shall allow one month's time to the writ Petitioner to produce a duplicate certificate duly authenticated by the concerned Deputy Commissioner. If the Petitioner succeeds in producing such certificate to the satisfaction of the Respondent authority, no order imposing any penalty need be passed against him. No Cost. Petition allowed