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2015 DIGILAW 546 (TRI)

State of Tripura v. Bikramjit Debbarma

2015-07-16

DEEPAK GUPTA, U.B.SAHA

body2015
JUDGMENT Deepak Gupta, J. All these writ appeals are being disposed of by a common judgment since they arise out of one judgment of the learned Single Judge and the issues of law and fact involved are very similar. 2. It is not disputed that the petitioners (respondents herein) in all cases have obtained certificates to the effect that they are members of the Scheduled Tribe belonging to the Tripuri Community. Proceedings were initiated before the State Level Scrutiny Community (SLSC) against the petitioners on the ground that they had obtained the Scheduled Tribe certificate by misrepresenting that they were members of the Tripuri community. The Case of the State is that the petitioners are in fact members of the Laskar community. The petitioners (respondents herein) in all cases challenged the order of the SLSC by filing writ petitions which have been allowed by the learned Single Judge. Hence, these writ appeals by the State. 3. Here it would be pertinent to give some historical background. In the State of Tripura amongst the many other tribes recognized to be Scheduled Tribes under the Constitution, the Tripuri community is also recognized as a Scheduled Tribe. There was a practice prevalent in the State of Tripura that members of the Laskar community were also shown to be members of the Tripuri community and Scheduled Tribe certificate were issued to them showing them to be members of the tripuri community. This gave rise to litigation. Finally, the Apex Court in Srish Kumar Choudhury Vrs. State of Tripura and Others : AIR 1990 SC 991 held that the State had no power to expand the tribes and this could only be done by the Union Government and therefore, it held that the members of the Laskar community were not entitled to be treated as the members of Scheduled Tribe. 4. This Court can take judicial notice of the fact that in the State of Tripura there were an abnormally large number of cases where the persons who did not belong to the Scheduled Caste or Scheduled Tribe had obtained such certificate. Therefore, the State of Tripura made stringent provisions for cancellation of the Scheduled Castes/Scheduled Tribes certificate and also incorporated deterrent punishment and penalties against those persons who had obtained false certificate. 5. Therefore, the State of Tripura made stringent provisions for cancellation of the Scheduled Castes/Scheduled Tribes certificate and also incorporated deterrent punishment and penalties against those persons who had obtained false certificate. 5. Section 8 of Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 sets out the offences and penalties and obtaining a false certificate has been made a criminal offence also. Sub-Section (11) of Section 8 reads as follows: “(11) (a) Notwithstanding anything contained in any other law or service rules, whoever, not being a person belonging to the Scheduled Castes or the Scheduled Tribes, secures or has secured any appointment to any service or post on the basis of false certificate in any establishment under the State shall, on cancellation of the community certificate, be forthwith terminated from the service or post; (b) Whoever not being a person belonging to the Scheduled Castes or the Scheduled Tribes secures or has secured any admission or selection for admission to any educational institution for any study or training against a seat reserved for the Scheduled Castes or the Scheduled Tribes or enjoys any benefit or concession of the Scheduled Castes or the Scheduled Tribes shall, on cancellation of his community certificate, be forthwith debarred from the educational institution and any other benefit or concession being enjoyed by him as aforesaid shall forthwith be withdrawn. Any amount paid to such person by way of stipend, scholarship, grant, allowance, educational loan etc. on the basis of the false community certificate shall also be recovered from him as arrears of land revenue; (c) Any degree or diploma or any other educational qualification acquired by such person on the basis of a false community certificate, shall, on cancellation of the false community certificate obtained by him, also stand cancelled;” Section 11 of the Act reads as follows : “11. Onus of Proof: When in any proceeding under this Act or the rules made there under the question is whether a person belongs to the Scheduled Caste or Scheduled Tribe, the onus of proof shall be on the person who claims himself to be member of the Scheduled Castes or the Scheduled Tribes, as the case may be.” This provision makes it clear that when any proceeding under the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 regarding the correctness of such certificate is pending, the onus of proving that the person who claims to be a member of the reserved category shall lie upon him and he must discharge this onus which lies on him. 6. Criminal law is replete with instances where by legislative intervention, the burden under such circumstances shifts. To illustrate, under the Narcotic Drug and Psychotropic Substances Act, 1985 if a person is found to be in possession of a contraband substance, then the burden shifts and he has to explain how he was in possession of the substance. The legality of this provision is not under challenge before this Court and Section 11 makes it clear that the onus of proof lies upon the person who claims to belong to the reserved category be it Scheduled Caste or Scheduled Tribe in any proceedings conducted under the law. 7. This Court is not oblivious to the fact that in criminal or quasi-criminal proceedings even if the onus shifts, it is the prosecution which must prove its case. The findings of the State Level Scrutiny Committee have very wide ranging effect and can be used in criminal proceedings and in fact a finding given by it could entail a person losing his job. Therefore, the proceedings must be conducted according to the rules of natural justice. Reference in this behalf may be made to Rule 7A of the Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992 as amended up to May, 2007. Under Rule 7A, the State government has constituted two ‘Scrutiny Committees’. The Director of Vigilance has been directed to constitute a vigilance cell in this regard. Reference in this behalf may be made to Rule 7A of the Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992 as amended up to May, 2007. Under Rule 7A, the State government has constituted two ‘Scrutiny Committees’. The Director of Vigilance has been directed to constitute a vigilance cell in this regard. The Investigating Officer who is dealing with an investigation in relation to the correctness or otherwise of a certificate issued in favour of a person claiming to belong to the Scheduled Caste or Scheduled Tribe at the stage of inspection is expected to go to the place where such person normally resides or in case such person has migrated to the town, to the rural areas to which he originally belongs. 8. Sub-rule (3) of Rule 7A reads as follows : “(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.” This clearly envisages that even before the report is submitted to the State Level Scrutiny Committee, the Investigating Officer has to not only visit the place from which the concerned person originally hails, he is also required to examine the school records, birth registration certificate etc. by the castes or tribes or tribal communities concerned etc.” This clearly envisages that even before the report is submitted to the State Level Scrutiny Committee, the Investigating Officer has to not only visit the place from which the concerned person originally hails, he is also required to examine the school records, birth registration certificate etc. The Investigating Officer is also required to examine the parents, guardian or other relatives of the certificate holder and after conducting these exercises and keeping into consideration their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. give a prima facie report as to whether such person belongs to the Scheduled Caste or Scheduled Tribe or not. 9. After such report is given, the State Level Scrutiny Committee has to act in accordance with the sub-rule (4) which reads as follows : “(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. 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. One of us (Deepak Gupta, CJ) considered these provisions of law in CRP No.42 of 2015 and held as follows: “10.***** A bare reading of this provision makes it absolutely clear that after report is submitted by the Director of Vigilance and in such report if it is reported that the community status as claimed by the person is not genuine or doubtful or spurious or false or wrongly claimed, the Member Secretary of the State Level Scrutiny Committee shall issue show cause notice to the said person. Along with the said show cause notice, the Member Secretary must send a copy of the report of the Vigilance Officer. The notice should indicate that the representation or reply, if any, should be made within two weeks from the date of receipt of the notice. If the person whose certificate is under dispute seeks an opportunity of hearing and seeks inquiry in the matter, then the matter has to be placed before the State Level Scrutiny Committee and the Chairperson of the Committee must give the certificate holder a reasonable opportunity of putting forth his case. He should also be given a right to lead and produce such evidence as he may desire. The last portion of the sub-rule is very crucial. He should also be given a right to lead and produce such evidence as he may desire. The last portion of the sub-rule is very crucial. It lays down that after such opportunity in person or through counsel has been given, the Committee may inquire as it deems expedient and consider the claims vis-à-vis the objections raised by the certificate holder or opponent and pass an appropriate order with brief reasons in support thereof. ********. 11. Though I am not in agreement with the submission of the petitioner that the petitioner cannot be asked to lead evidence at the first stage, as has already been discussed hereinabove, I am clearly of the view that the opportunity given to the person should be an opportunity which is just and reasonable, an opportunity which gives him reasonable chance to rebut the case of the State, an opportunity which does not deprive him of his right to lead evidence and an opportunity which is consistent with the rules of natural justice. 12. The Rule is not clear and only directs that the copy of the report of the Vigilance Officer should be made available to the person whose certificate is under challenge. In case, the burden is to shift to the person whose certificate is under challenge, then not only a copy of the report but the entire evidence collected by the Investigating Officer must be supplied to the said person otherwise such person will not know what is the case which he has to answer. The person whose certificate is under challenge must know what is the exact material which the Vigilance Officer relied upon. Therefore, not only the report of the Vigilance Officer but the entire record including the statements of the witnesses if any recorded, the documentary evidence, if any collected, must be handed over to such person. If that is done then I see no harm if such person is asked to lead his evidence first because such person is in knowledge of the entire material on which the department relies. 13. If that is done then I see no harm if such person is asked to lead his evidence first because such person is in knowledge of the entire material on which the department relies. 13. This Court would also like to make it clear that if this procedure is followed and the person leads his evidence, even if the evidence of the State is led at a later stage the evidence must be confined only to the material which has been relied upon by the Vigilance Officer and which has been supplied to the person whose certificate is under challenge. In case any fresh material is sought to be brought in by the Vigilance Officer or the department concerned against the person, then that material cannot be used against him unless he is supplied that material in advance and is given a fresh opportunity to rebut the said material. The inquiry should normally be confined to the material which has been placed on record by the Vigilance Officer because that is what contemplated under sub-rule (4) of Rule 7A. However, in certain cases if some very relevant evidence comes to the knowledge of the Scrutiny Committee even during the course of the inquiry, it can use the same but the same can only be used after giving notice to the person whose certificate is under challenge that this is the fresh material which has been collected. The fresh method should be supplied to the person and he should be given reasonable opportunity of rebutting the same by adducing evidence. Rebutting this additional material means that he will be given a chance not only to reply to the application for leading such evidence but also be given a chance to rebut such evidence if such evidence is produced. 14. The Scrutiny Committee must realize that it is dealing with the future of the person. It is dealing with issues which not only entail civil consequences inasmuch as such person may lose his job but it also entails criminal consequences where such person can go behind bars. Therefore, the Scrutiny Committee must ensure that in each and every case, the procedural laws are followed in letter and spirit and the rules of natural justice are not violated. Therefore, the Scrutiny Committee must ensure that in each and every case, the procedural laws are followed in letter and spirit and the rules of natural justice are not violated. It is also made clear that though the onus of proving the caste may shift on to the person claiming his caste, the burden in such cases never shifts. The State will have to prove that the certificate is false. In all cases the SLSC must pass a detailed reasoned order in support of it’s findings.” 10. Similar orders have been passed by the SLSC in all the cases for cancellation of Scheduled Tribe certificate. One of the orders passed reads as follows: “STATE LEVEL SCRUTINY COMMITTEE (CONSTITUTED BY THE GOVERNMENT VIDE GA (AR) DEPARTMENT NOTIFICATION NO.F.11(66)-GA(AR)/2001 Dated 15-4-2004 In the matter of Sri Bikramjit Debbarma, S/O Lt. Badal D/barma of Kajari Villa, Dhaleswar, Road No.1. P.O:- Dhalweswar, Tripura West. Serving as under Secretary under Tripura Board of Secondary Education Deptt. ORDER Date 18/08/2006 The State Level Scrutiny Committee has examined the caste status of Sri Bikramjit Debbarma, S/O Lt. Badal D/barma of Kajari Villa, Dhaleswar, Road No.1. P.O:- Dhalweswar, Tripura West and also examined the reply of Show cause Notice dated 17/5/2006 submitted by Sri Bikramjit Debbarma to Director, Tribal Welfare, Government of Tripura, Gorkhabasti, Agartala. The Committee has gone through the Vigilance enquiry report about the caste status of Sri. Bikramjit Deb Barma. He was given also an opportunity of being heard on 18/8/2006 at 11.00 A.M by the State Level Scrutiny Committee. During the hearing he could not produce documentary evidence in support to his ST status belonging to Tripuri Community. On careful consideration of all records the Committee has come to the conclusion that Sri Bikramjit Debbarma belongs to Laskar Community. The ST certificate bearing NO.33/SDO/KLS/85 dated 20-2-86 held by Sri Bikramjit Debbarma is no longer valid after the issue of Notification No.38296-396/F.6-4(C-D)/TW/89 dated 31-3-90. So the said Scheduled Tribes Certificate is hereby cancelled and Sri Bikramjit Debbarma is directed to return the SAID original ST certificate to the Director Tribal Welfare, Government of Tripura, Gorkhabasti Agartala immediately. Let a copy of this order be supplied to Sri Bikramjit Debbarma. Sd/- Member Secretary State Level Scrutiny Committee (Director, Tribal Welfare) Sd/- Chairman State Level Scrutiny Committee (Commissioner & Secretary) Tribal Welfare Department Sd/- Member, State Level Scrutiny Committee (Director, Tribal Research Institute)” 11. Let a copy of this order be supplied to Sri Bikramjit Debbarma. Sd/- Member Secretary State Level Scrutiny Committee (Director, Tribal Welfare) Sd/- Chairman State Level Scrutiny Committee (Commissioner & Secretary) Tribal Welfare Department Sd/- Member, State Level Scrutiny Committee (Director, Tribal Research Institute)” 11. We are constrained to observe that the officers holding the high office of the Members of the State Level Scrutiny Committee appear to be totally unaware of what is expected from them under law. The order gives no reasons whatsoever. It is a totally unreasoned order. As pointed out above the Act and the Rules require that the SLSC has to pass a reasoned order. We may add that the order passed by the SLSC will have wide ramifications. Such an order could lead to the affected persons losing his job. This order can be used in criminal proceedings and can be used as evidence against a person to convict him and sentence him to imprisonment. Therefore, it is all the more necessary that the members of the SLSC should be aware about their responsibility and what they are required to do under the Act. They cannot act in an arbitrary manner. They have to comply not only with the provisions of the Act and the Rules but also with all provisions of natural justice so that no persons is condemned unheard. This Act makes stringent provisions whereby a person who obtains a job on a false certificate would lose his job and the onus of proof will be on him to prove his caste. But the least which is required of the SLSC is to give reasons in the order passed. 12. We agree with the learned Single Judge that the order of the SLSC is a totally non-speaking order giving no reasons and therefore, the same is bound to be set aside. 13. Not only that we find that the SLSC has not given reasonable opportunity to the petitioners to put forth their cases. Show cause notice was issued to the petitioners sometimes in December-2004. The dates may vary in different cases but the show cause notice was based on the basis of a verification report. It appears that that verification report was sent to the petitioners alongwith the notice. Show cause notice was issued to the petitioners sometimes in December-2004. The dates may vary in different cases but the show cause notice was based on the basis of a verification report. It appears that that verification report was sent to the petitioners alongwith the notice. Thereafter in most of the cases the petitioners filed reply claiming that they were only supplied a copy of the inquiry report but not supplied the statements of the witnesses. It appears that SLSC thereafter supplied the statements of the witnesses recorded by the Inquiry Officer. Thereafter the petitioners submitted a fresh reply and prayed that they may be permitted to cross-examine the witnesses whose statements have been relied upon by the Inquiry Officer. This request was not accepted and the impugned order has been passed. Shockingly the impugned order does not even make reference to the request made by the petitioners. It does not even refer to the any portion of the statement of the witnesses. 14. This Court has already observed hereinabove that the rules of natural justice must be observed. Cross-examination is a vital part of the process of natural justice. The statement of a witness recorded behind the affected party cannot be used against that affected party without giving that party a right to cross-examine the said witness. By exercise of this right the affected party can challenge the veracity of the witness, his truthfulness, his creditworthiness etc. etc. Not only this, the SLSC must in every case give an opportunity to the affected party to lead its own evidence. Once the onus has shifted on the party to prove its caste/tribe in terms of Sub Section 8(11) of the Act, obviously the affected party will have to be given a right to produce evidence to prove the fact that it belongs to a particular caste or tribe. Even this procedure has not been followed. 15. We are therefore, clearly of the view that the procedure followed by the SLSC was totally against the Act and the Rules and also the provision of natural justice. 16. That brings us to the last contention. The learned Single Judge rejected the prayer of the State that the matter be remanded to the SLSC because the order had been set aside on the ground that the petitioners had not been given reasonable opportunity of being heard in the matter. 16. That brings us to the last contention. The learned Single Judge rejected the prayer of the State that the matter be remanded to the SLSC because the order had been set aside on the ground that the petitioners had not been given reasonable opportunity of being heard in the matter. This prayer was rejected by the learned Single Judge and one of the main grounds which weighed with him was that in some of the cases in the rejoinders filed, the petitioners had claimed that they belong to the same clan as one Sri Santunu Debbarma who had been held to be a member of the Tripuri community by the SLSC in an earlier matter. 17. We are afraid that this is not sufficient ground not to accept the prayer of the State and here we are in respectful disagreement with the learned Single Judge. First of all this was not the case set up in all the petitions. This was an issue which was pleaded only in rejoinder and had not been pleaded in the writ petition. Therefore, it could not be accepted to be the gospel truth. Furthermore, it is the SLSC which is the authority expected to give finding of fact and this findings of fact could not have recorded by the learned Single Judge without himself coming to the conclusion on the basis of material that the petitioners were in fact members of the same clan as Santunu Debbarma. 18. We are not going into the merits of this claim. Some of the petitioners may be member of his clan and, therefore, may be entitled to take benefit of the fact that since Santunu Debbarma had been held to be a member of the Tripuri community and they being members of his clan are also entitled to same benefit. However, this matter shall have to be decided by the SLSC on the basis of the evidence led before it. The petitioners shall have to prove that they are not only members of the same clan as Sri Santunu Debbarma but also that they belong to the Tripuri community. The petitioners will be at liberty to prove that they are members of the clan of Santunu Debbarma. The petitioners shall have to prove that they are not only members of the same clan as Sri Santunu Debbarma but also that they belong to the Tripuri community. The petitioners will be at liberty to prove that they are members of the clan of Santunu Debbarma. The petitioners will have to be given an opportunity to lead evidence and prove their claim and in case they lead evidence, the State shall also be entitled to lead evidence to prove the contrary. 19. Therefore, though, we are in agreement with the learned Single Judge that the order of the SLSC was bound to be set aside, we are in respectful disagreement with regard to his finding that the matter should not be remanded to the SLSC. We, therefore allow the appeals of the State to this limited extent and remand all the cases to the SLSC who shall now proceed with the matter from the stage of the reply filed to the show cause notices. The SLSC shall permit the petitioners to cross-examine the witnesses examined by the Inquiry Officer. It shall also permit the petitioners to examine any witnesses, if they so desire or to produce any other documents. In case, the petitioners lead evidence then the State shall also be given an opportunity to produce evidence to the contrary. This exercise must be completed on or before 28th February, 2016. All the petitioners are directed to appear before the SLSC on 12th August, 2015. The Registrar General is directed to send a copy of this judgment to the SLSC and the members of the SLSC are directed to ensure that in all cases in the future they follow the law laid down by this Court. Send down the LCRs forthwith.