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Madhya Pradesh High Court · body

2015 DIGILAW 456 (MP)

Rajesh Bhangre v. State of M. P.

2015-04-21

ROHIT ARYA

body2015
ORDER 1. By this petition under Article 226 of the Constitution of India, petitioner, an Assistant Commandant posted at Special Arms Forces, Guna has called in question the legality, validity and proprietary of the order dated 4.7.2011 passed by the High Level Committee constituted by the State Government for the purposes of verification of caste certificates as well as the order dated 22.9.2011 passed by the Commissioner, Tribal Development addressed to the District Collector, Guna and Superintendent of Police, Guna for initiation of action against the petitioner based upon the order Annexure P-1A dated 4.7.2011. By the order Annexrue P-1A, the petitioner has not been found to belonging to caste Halwa, a Scheduled Tribe caste in District Jhabua and therefore, he is held not entitled for seeking employment on the strength of aforesaid caste certificate and case certificate issued in his favour was not found to be legal and proper and such appointment on the basis of aforesaid caste certificate sought to be cancelled on the strength of Annexures P-1A and P-1. 2. Learned counsel for the petitioner has raised an issue related to non-observance of principle of natural justice in the matter of verification of caste certificate by the High Level Committee. Admittedly, notice for appearance before the High Level Committee was issued to the petitioner for his appearance on 22.6.2011. However, the petitioner though vide Annexure P-12 dated 20.6.2012 applied for leave to attend the hearing before the High Level Committee, but the same was denied by Commandant, 26 Bn. Guna, superior authority to the petitioner. Resultantly, the petitioner could not appear before the Committee. Thereafter, the proceedings were scheduled for 4.7.2011. On the said date, due to indisposition, the petitioner could not reach Bhopal and attend the hearing. However, he had forwarded the copy of medical certificate as regards inability to attend the hearing. It appears that the High Level Committee has proceeded to decide the matter as regards verification of caste certificate issued to the petitioner and on the basis of material collected by the Committee, it decided against the petitioner holding that petitioner does not belong to Halwa caste. Hence, certificate issued to him by competent authority was not legal and proper. 3. Hence, certificate issued to him by competent authority was not legal and proper. 3. Learned counsel for the petitioner further submits that the High Level Committee was not justified having not further extended opportunity to the petitioner to present his case and file documents in support of the caste certificate issued to him, as he belong to Halwa Caste. The High Level Committee has relied upon certain documents obtained by it from different quarters and used the said against the petitioner without confronting the petitioner with the said documents and without affording an opportunity to rebut the same. As a result, petitioner has been condemned unheard as highly prejudicial report has been prepared by the High Level Committee detrimental to his rights and interest. The course of action adopted by the High Level Committee cannot be sustained in the eyes of law for the reason that in all fairness petitioner ought to have been heard before any prejudicial action against him. With aforesaid submissions, it is prayed that the impugned order of the Committee dated 4.7.2011 cannot be sustained. 4. Per contra, learned counsel for State submits that despite the proceedings fixed twice on 22.6.2011 and 4.7.2011 since the petitioner has not appeared, the Committee has proceeded with the enquiry and relying upon the evidence collected, has found that petitioner does not belong to Halwa caste, therefore, caste certificate issued to him was not legal and proper. Findings so recorded by the High Level Committee is based on material facts brought on record and the impugned order itself is self contained and explanatory. That apart, as the petitioner himself has not appeared despite being afforded the opportunity twice, no complaint can be made for non-observance of principles of natural justice and accordingly, order dated 4.7.2011 is impregnable in nature and no interference is warranted under Article 226 of the Constitution of India. 5. Heard. 6. The aforesaid High Level Committee has been constituted in view of judgment of Hon. apex Court in case of Ku. Madhuri Patil and another v. Additional Commissioner, Tribal Development and others, [ (1994)6 SCC 241 ]. The judgment itself contemplates that an opportunity shall be afforded to the delinquent before the High Level Committee decides the issue as to whether the delinquent belongs to a particular caste and community and whether the caste certificate issued to him was legal or proper. The judgment itself contemplates that an opportunity shall be afforded to the delinquent before the High Level Committee decides the issue as to whether the delinquent belongs to a particular caste and community and whether the caste certificate issued to him was legal or proper. Admittedly, in the instant case, the proceedings were fixed on 22.6.2011 and 4.7.2011. On 22.6.2011, the petitioner could not attend the proceeding as he was denied leave by his superior as is evident from his leave application (Annexure P-12) dated 20.6.2011. There is no denial of the aforesaid fact in the counter affidavit. As such petitioner cannot be blamed for not having attended the proceedings before the Committee on 22.6.2011. The next date of the hearing was fixed on 4.7.2011. There is no dispute that petitioner had communicated with respondents that because of his indisposition, he was unable to attend the hearing before the High Level Committee and he had also submitted the medical certificate in that behalf. There is no dispute as regards the fact of indisposition of the petitioner and the medical certificate issued and brought on record. The Committee has also taken cognizance of those documents and not discarded the same. However, the Committee has proceeded with the enquiry and based upon the material collected by it has passed the impugned order (Annexure P-1A) against the petitioner without hearing him. The procedure adopted by the Committee in the matter of reaching to the conclusion that the petitioner does not belong to Halwa caste cannot be countenanced. The committed is expected to afford not only an opportunity but an effective meaningful opportunity to the delinquent but that was not done. Collection of material during the course of enquiry by the Committee and use thereof to justify its order, cannot be permitted unless such materials so brought on record are confronted to the delinquent/petitioner. It is the basic tenet of principles of natural justice that no one shall be condemned unheard. In the opinion of this Court, the petitioner has been denied the equity before law and equal protection of law violating his fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India. Besides the principles of natural justice have been frightfully violated. In the opinion of this Court, the petitioner has been denied the equity before law and equal protection of law violating his fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India. Besides the principles of natural justice have been frightfully violated. As a matter of fact, the procedure adopted by High Level Committee is also not in accordance with the directives issued by Hon. apex Court in the matter of Ku. Madhuri Patil (supra). 7. For the aforesaid reason, in the opinion of this Court, the recommendations made by order Annexure P-1 based upon order Annexure P-1A for taking action against the petitioner cannot be sustained. Accordingly, the impugned order Annexure P-1 is quashed. Matter is remitted back to High Level Committee for fixing a date for holding enquiry with due communication to the petitioner. The petitioner shall appear before the Committee on the said date. The superior authority of the petitioner shall afford leave to the petitioner to appear before the High Level Committed on the date so fixed. After grant of leave, the absence of petitioner before the High Level Committee shall be treated as deliberate absence and Committee shall be free to conclude in his absence. During this period the effect and operation of the impugned order Annexure P-1A dated 4.7.2011 shall be kept in abeyance. The Committee shall be free to take final decision after affording opportunity to file documents and present his case before this Committee. 8. State counsel is directed to make over and transmit the record of High Level Committee. 9. It is made clear that this Court has not expressed any opinion on merits of this case.