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2014 DIGILAW 93 (TRI)

Kartik Chandra Das v. State of Tripura

2014-02-17

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:- Heard learned counsel, Mr. B. Banerji for the petitioner and learned counsel, Mr. A. Ghosh for the State respondents. A caste certificate that the petitioner belonged to Scheduled Caste community (Namasudra) was issued by the District Magistrate & Collector, South Tripura on 27.12.1974 (Annexure-1 to the writ petition). On 11.07.1996, respondent No. 2 issued a show cause notice (Annexure-3 to the writ petition) to the petitioner asking him to show cause as to why the said caste certificate dated 27.12.1974 should not be cancelled. In response to the show cause notice, the petitioner submitted his reply in writing (Annexure-4 to the writ petition). 2. Taking into consideration the show cause reply submitted by the petitioner and further taking into consideration a report submitted by the Chairman, Scheduled Caste Sub-Committee of Matabari Block, respondent No. 2, the District Magistrate & Collector by Memo. dated 31.07.1996 (Annexure-6 to the writ petition) cancelled the Scheduled Caste certificate issued in the name of the petitioner. After cancellation of the S.C. certificate of the petitioner, vide Memo. No. F.Con/262/CEE/94/18872-75, dated 05.11.1996 (Annexure-9 to the writ petition) a disciplinary proceeding was initiated on the sole article of charge that the petitioner fraudulently obtained the caste certificate. 3. By filing the present writ petition, the petitioner challenged the impugned Memo. dated 31.07.1996 (Annexure-6 to the writ petition) whereunder caste status certificate of the petitioner has been cancelled and the disciplinary proceeding initiated by Memo. dated 05.11.1996 (Annexure-9 to the writ petition). 4. Respondents contended that Scheduled Caste Sub-Committee of Matabari Block verified the caste status certificate of the petitioner and found that the petitioner did not belong to Scheduled Caste community (Namasudra) and based on that report a show cause notice was issued to the petitioner by the District Magistrate & Collector, i.e. the issuing authority of the caste certificate and considering the show cause reply submitted by the petitioner and further considering the report submitted by the Scheduled Caste Sub-Committee of Matabari Block, the caste status certificate of the petitioner was cancelled by impugned order dated 31.07.1996 and, consequently a disciplinary proceeding also was drawn up against the petitioner as per the provisions prescribed in the Tripura Scheduled Castes and Scheduled Tribes Reservation Act and Rules framed thereunder. 5. Learned counsel, Mr. 5. Learned counsel, Mr. Banerji appearing for the petitioner submits that respondent No. 2, the District Magistrate & Collector had no authority to cancel the caste status certificate issued in the name of the petitioner. According to the provisions prescribed under the Tripura Scheduled Castes and Scheduled Tribes Reservation Act and Rules framed thereunder, the State Level Scrutiny Committee is only authorized to deal with issuance of caste certificate and to cancel the same. Learned counsel has also submitted that only show cause notice was issued to the petitioner and the petitioner submitted reply of the show cause notice but no opportunity was given to the petitioner to defend his case to adduce evidence, to cross-examine the witnesses or to controvert the evidence on which the Scheduled Caste Sub-Committee of Matabari Block relied on. So, the principle of natural justice was violated, and hence, the order cannot stand in the eye of law and, consequently, the disciplinary proceeding also cannot stand in law and fact. 6. Learned counsel, Mr. Ghosh for the State respondents, with all his fairness, has submitted that the procedure prescribed in the Tripura Scheduled Castes and Scheduled Tribes Reservation Act has not been followed and the District Magistrate & Collector, who was the issuing authority, taking into consideration the report submitted by the Scheduled Caste Sub-Committee of Matabari Block and the show cause reply submitted by the petitioner, cancelled the Scheduled Caste certificate issued in the name of the petitioner and if this Court finds the action not according to law, liberty may be given to the respondents to approach the appropriate authority for scrutiny of the caste status certificate of the petitioner. 7. The Supreme Court in the case of Director of Tribunal Welfare, Government of A.P. v. Laveti Giri reported in AIR 1995 SC 1506 has laid down the procedures to be followed while dealing with a caste certificate fraudulently obtained by a person. Substantially, following the decision of the apex Court in the case of Laveti Giri (supra) and the decision of the apex Court in the case of Kumari Maduri Patil v. Additional Commissioner, Tribal Development reported in AIR 1995 SC 94 , provision has been prescribed in the Tripura Scheduled Castes and Scheduled Tribes Reservation Act and Rules regarding the procedure to be followed while dealing with a false SC/ST certificate. Rules 6 and 7A of the Tripura Scheduled Castes and Scheduled Tribes Reservation Act and Rules reads as follows: [6. Cancellation of Scheduled Caste or Scheduled Tribe certificate An authority who issued a Scheduled Caste Certificate or Scheduled Tribe certificate to any one may, at a subsequent stage cancel it, if after an enquiry and after giving the party concerned an opportunity of being heard, it finds that the person to whom the Community Certificate was issued does not actually belong to the Scheduled Caste or the Scheduled Tribe, as the case may be. Provided that in cancelling a Scheduled Caste Certificate, the issuing authority shall obtain the views of the concerned Block Level or Nagar Panchayat Level or Municipal Level Scheduled Castes Welfare Sub-Committee and in cancelling a Scheduled Tribe certificate, the issuing authority shall obtain the views of the Sub-Divisional Level Scheduled Tribes Welfare Sub-Committee, if any, constituted by the Government, as to whether the certificate holder belongs to Scheduled Caste or Scheduled Tribe and the views so given by the Scheduled Castes Welfare or Scheduled Tribes Welfare Sub-Committee shall form a part of the order cancelling the certificate in question. Provided further that the Scrutiny Committee shall also be competent to cancel a community certificate issued by a competent authority. For arriving at a decision whether the community certificate in question shall be cancelled or not, the Scrutiny Committee shall follow the procedure prescribed in Rule 7A hereinafter along with reports/records obtained from the competent authority.] [7A Constitution, Powers and Functions of the Scrutiny Committee. (1) At the State Level there shall be two Scrutiny Committees as follows- (a) For verification of community status of Scheduled Caste Certificate holders, the Scrutiny Committee shall consist of:- (i) The Secretary-in-charge of Department for Welfare of Scheduled Castes, Other Backward Classes and Minorities-Chairman. (1) At the State Level there shall be two Scrutiny Committees as follows- (a) For verification of community status of Scheduled Caste Certificate holders, the Scrutiny Committee shall consist of:- (i) The Secretary-in-charge of Department for Welfare of Scheduled Castes, Other Backward Classes and Minorities-Chairman. (ii) The Director for Welfare of Scheduled Castes and Other Backward Classes-Member-Secretary (iii) Joint Secretary or Deputy Secretary of the Law Department]-Member [(iv) Additional Director or Joint Director or Deputy Director for Welfare of Scheduled Castes & Other Backward Classes-Member (b) For verification of community status of Scheduled Tribe certificate holders, the Scrutiny Committee shall consist of:- (i) The Secretary-in-charge of the Tribal Welfare Department-Chairman (ii) The Director for Welfare of Scheduled Tribes-Member-Secretary (iii) The Director, Tribal Research Institute-Member (iv) Joint Secretary or Deputy Secretary of the Law Department]-Member [(2) Director of Vigilance shall constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors and Sub-Inspectors to investigate into the community status and claims as may be required. (3) The Investigating Officer would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed. He should personally verify and collect all the facts of the social status claimed by the certificate holder or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the certificate holder in relation to their caste etc. or such other persons who have knowledge of the community status of the certificate holder and submit a report to the Director of Vigilance who will verify the correctness of the report and transmit it to the Member-Secretary of the Scrutiny Committee concerned together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc. by the castes or tribes or tribal communities concerned etc. (4) The Member-Secretary of the Scrutiny Committee concerned, on receipt of the report from the Director of Vigilance if finds the claim for community status is not genuine or doubtful or spurious or falsely or wrongly claimed, the Member-Secretary concerned shall issue show-cause notice supplying a copy of the report of the vigilance officer to the community certificate holder by a registered post with acknowledgement due or through the head of the institution or office concerned in which the certificate holder is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case, on request, not more than 30 days from the date of receipt of the notice. In case, the certificate holder seeks an opportunity of hearing and claims an inquiry to be made in that behalf, the Member-Secretary on receipt of such representation or reply shall convene the meeting of the committee and the Chairperson of the Committee shall give a reasonable opportunity to the certificate holder and in case the certificate holder is a minor to the parent or guardian to adduce all evidences in support of his claim. A public notice by beat of drum or any other convenient mode may also be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may also be given to him or it. After giving such opportunity in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the certificate holder or opponent and pass an appropriate order with brief reasons in support thereof. Provided that in case a certificate holder engages a legal practitioner to represent his case before the Scrutiny Committee, the Director for Welfare of Scheduled Castes and Other Backward Classes or the Director for Welfare of Scheduled Tribes as the case may be, may engage a lawyer. Provided further that before passing a final order, the Committee shall also take into consideration the local enquiry report of the Sub-Divisional Magistrate and opinion of the Sub-Committee concerned. Provided further that before passing a final order, the Committee shall also take into consideration the local enquiry report of the Sub-Divisional Magistrate and opinion of the Sub-Committee concerned. (5) In case the report is in favour of the certificate holder and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in sub-rule (4) shall be followed. (6) The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, the Committee shall pass an order cancelling the certificate issued and confiscate the same. The Committee shall communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the certificate holder and in case the certificate holder is a minor to his parent or guardian. (7) In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an office or post is getting expired, the certificate holder be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the community status certificate already issued, on an affidavit duly sworn by the parent or guardian or certificate holder before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee. (8) In case, the certificate obtained or community status claimed is found to be false, the parent or guardian or certificate holder as the case may be, shall be prosecuted for making the false claim. If the prosecution ends in a conviction and sentence of the accused, it shall be regarded as an offence involving moral turpitude, a disqualification for elective posts. (9) As soon as the findings is recorded by the Scrutiny Committee holding that the certificate obtained was false and the certificate is cancelled and confiscated, it shall be communicated to the head of the Educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. (9) As soon as the findings is recorded by the Scrutiny Committee holding that the certificate obtained was false and the certificate is cancelled and confiscated, it shall be communicated to the head of the Educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The head of the educational institution responsible for making the admission or the appointing authority, shall cancel the admission or appointment as the case may be without any further notice to the certificate holder and debar him from further study or continue in office in a post]. 8. Admittedly, in the present case, the procedure prescribed as stated hereinabove has not been followed. In the present case, if the caste status certificate of the petitioner was suspected to have obtained fraudulently, it was necessary for the District Magistrate & Collector to refer it to the State Level Scrutiny Committee, which was already in existence at the relevant time of cancellation of the certificate. That was not done by the District Magistrate & Collector, whereas, the District Magistrate & Collector himself issued show cause notice and considering the show cause notice cancelled the caste status certificate which cannot be legally accepted. Even no scope of hearing was given to the petitioner except issuance of the show cause notice. The petitioner should be given an opportunity to defend his case as per the procedure prescribed by law. 9. Considering the facts brought on record and considering the submission of learned counsel of both side, the impugned Memo. dated 31.07.1996 (Annexure-6 to the writ petition) and impugned Memo. dated 05.11.1996 (Annexure-9 to the writ petition) are hereby set aside and quashed. It is, however, left open for the respondents to initiate scrutiny of the caste status certificate of the petitioner according to the procedure prescribed by law. The writ petition accordingly stands disposed of.