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2017 DIGILAW 801 (CAL)

Biswajit Das v. State of West Bengal

2017-09-22

DEBI PROSAD DEY, DIPANKAR DATTA

body2017
JUDGMENT : Dipankar Datta, J. 1. A learned Judge of this-Court had the occasion to hear three writ petitions analogously. Two of such writ petitions were at the instance of the appellant (hereafter Biswajit) while the other was at the instance of the sixth respondent (hereafter Basudeb). By a common judgment and order dated December 21, 2009, the learned Judge dismissed the writ petitions of Biswajit and allowed Basudeb's writ petition. Feeling aggrieved by such dismissal, Biswajit has carried these intra-Court appeals before us. Mr. Dutta, learned Advocate for the first to the fourth respondents (hereafter the official respondents) raised a preliminary objection. According to him, in the absence of any appeal having been presented by Biswajit against the judgment and order of the learned Judge allowing Basudeb's writ petition, it has attained finality and no effective relief could be granted to Biswajit If we are minded to reverse the orders of dismissal. We took note of such preliminary objection; however, having regard to the fact that the appeals had been pending before this Court for the last nine years, we proceeded further to ascertain the points in issue. The parties were, accordingly, heard and we have no hesitation that without answering the preliminary objection of Mr. Dutta, the appeals can be decided on merits. These appeals shall, therefore, be governed by this common judgment and order. 2. The question that arose for decision before the learned Judge was whether the Sub-Divisional Officer, Jangipur, Murshidabad, (hereafter the SDO) having issued a scheduled caste certificate in favour of Biswajit in 1986 was justified in cancelling the same invoking the provisions of the West Bengal Scheduled Castes and Scheduled Tribes (Identification) Act, 1994 (hereafter the 1994 Act). 3. The facts reveal that upon a post of Group-D staff (reserved for scheduled caste) in the relevant school having fallen vacant, a process for recruitment had been initiated. Biswajit and Basudeb along with others were aspirants for such post. A panel was prepared wherein Biswajit figured at the top whereas Basudeb was placed at the second position. Basudeb lodged a complaint that Biswajit was not a member of a scheduled caste and, therefore, could not have been considered for the post in question. The SDO issued a letter dated May, 27, 1999 and called upon Biswajit to appear before him within June 10, 1999 for verification of his scheduled caste certificate bearing No. 5442. Basudeb lodged a complaint that Biswajit was not a member of a scheduled caste and, therefore, could not have been considered for the post in question. The SDO issued a letter dated May, 27, 1999 and called upon Biswajit to appear before him within June 10, 1999 for verification of his scheduled caste certificate bearing No. 5442. A letter dated August 3, 1999 of the SDO revealed that the verification of the certificate was positive. Alleging that the school was attempting to appoint Biswajit, Basudeb presented a writ petition before this Court [W.P. 20308(W) of 1999 dated November 2, 1993, seeking an order restraining the respondents from appointing Biswajit on the post of Group D staff and also a direction on the respondents to consider the representations that had been made challenging Biswajit's status as a scheduled caste candidate. An order dated November 5, 1999, passed on W.P. 20308(W) of 1999 made it clear that if any appointment is made on the disputed post, the same shall abide by the result of the writ petition. 4. In due course, Biswajit was appointed as a Group D staff of the school. On the complaint of Basudeb, the SDO initiated a proceeding being Misc. Case No. 1 of 2001 (Basudeb Sahav, Biswajit Das). Several notices were issued calling upon Biswajit to attend the proceedings. Biswajit presented a writ petition [W.P. 3897(W) of 2002 dated March 20, 2002] questioning initiation of Misc. Case No. 1 of 2001 on the ground that a previous complaint of Basudeb was found to be without merit and the SDO by his memo dated August 3, 1999 had observed that the verification report in respect of the certificate bearing No. 5442 was positive. A learned Judge of this Court heard such writ petition on July 8, 2002. His Lordship did not interfere with the proceedings [Misc. Case 1 of 2001] noting that hearing in connection therewith had been completed but Biswajit had not been notified of the order/While disposing of the writ petition, a direction was made to supply the certified copy of the order in favour of Biswajit within a period of 4 weeks. 5. His Lordship did not interfere with the proceedings [Misc. Case 1 of 2001] noting that hearing in connection therewith had been completed but Biswajit had not been notified of the order/While disposing of the writ petition, a direction was made to supply the certified copy of the order in favour of Biswajit within a period of 4 weeks. 5. Biswajit once again presented a writ petition [W.P. 15693(W) of 2003 dated September 29, 2003], questioning Memo dated September 17, 2003 issued by the SDO whereby Biswajit was required to remain present on September 22, 2003 with all original documents in connection with Misc. Case No. 1 of 2001. There, he sought for quashing of the said notice. On November 13, 2003 an order was passed directing the learned Advocate for the State to obtain instructions. However, the writ petition does not appear to have been heard any time thereafter. 6. The writ Court not having restrained the SDO from proceeding further, the proceedings were taken to its logical conclusion. After receiving oral and documentary evidence and upon hearing the parties, the SDO passed a final order dated December 3, 2008 cancelling the scheduled caste certificate of Biswajit on the ground that he actually belonged to the caste "baishya banik" and was/is not a member of any scheduled caste. 7. The final order of the SDO dated December 3, 2008 was made the subject matter of another writ petition [W.P. 1734 (W) of 2009 dated January 14, 2009] by Biswajit, wherein he claimed quashing of the aforesaid order. Basudeb was not a party to the writ petition. He prayed for impleadment and such prayer was allowed by an order dated June 19, 2009. An interim order was passed by the Court restraining the respondents from terminating Biswajit's appointment. Affidavits were called for and upon exchange thereof, all the three writ petitions (two filed by Biswajit and the other filed by Basudeb) were posted for final hearing before the learned Judge on December 21, 2009. 8. The scheduled caste certificate that was issued in favour of Biswajit is not part of W.P: 1734 (W) of 2009, but is part of W.P. 15693 (W) of 2003, probably because the same had to be handed over for verification to the SDO. It appears therefrom that Biswajit belongs to the scheduled caste "sunri" excluding "Saha". 8. The scheduled caste certificate that was issued in favour of Biswajit is not part of W.P: 1734 (W) of 2009, but is part of W.P. 15693 (W) of 2003, probably because the same had to be handed over for verification to the SDO. It appears therefrom that Biswajit belongs to the scheduled caste "sunri" excluding "Saha". The certificate was issued on February 3, 1986 by the SDO and bears No. 5442. 9. Before the learned Judge, it was argued on behalf of Biswajit that the scheduled caste certificate having been issued on February 3, 1986, the same could not have been cancelled taking recourse to the 1994 Act. The learned Judge assigned detailed reasons as to why the SDO could have invoked the power conferred by the 1994 Act to proceed for cancellation of a certificate that might have been issued prior to the enactment being enforced. 10. Mr. Bhattacharya, learned senior Advocate appearing for Biswajit has not questioned the correctness of the judgment under appeal by saying that the reasons assigned by the learned Judge are not proper; on the contrary, he argued a point before us which was not argued before the learned Judge. Since the point sought to be argued by Mr. Bhattacharya appeared to us to be a pure question of law, we allowed him to do so. 11. Referring to the provisions of Sections 4, 5, 8A and 9 of the 1994 Act, Mr. Bhattacharya contended that the SDO had no power to cancel Biswajit's certificate without any exercise having been undertaken by the State Scrutiny Committee (hereafter the Committee) under Section 8A of the 1994 Act to ascertain his social status. In other words, according to him, an exercise made by a certificate issuing authority to cancel a certificate under Section 9(1) of the 1994 Act must be preceded by a report of the Committee under Section 8A and in the present case Section 8A having been followed in the breach, the impugned order of the SDO ought to be set aside by us in exercise of our appellate jurisdiction. 12. In support of such a contention, Mr. Bhattacharya has placed reliance on the decisions in Kumari Madhuri Patil v. Addl. Commissioner, Tribal Development, [ (1994)6 SCC 241 ], Kumari Madhuri Patil v. Addl. 12. In support of such a contention, Mr. Bhattacharya has placed reliance on the decisions in Kumari Madhuri Patil v. Addl. Commissioner, Tribal Development, [ (1994)6 SCC 241 ], Kumari Madhuri Patil v. Addl. Commr., Tribal Development, Thane, [ (1997)5 SCC 437 ], Darvell Investment & Leasing (I) Pvt. Ltd. v. State of West Bengal, [2015 (2) CHN (Cal) 674] and Bikash Chandra Mahata v. State of West Bengal [(2017) 1 Cal LT 162 (HC)]. 13. Mr. Bhattacharya also relied on the decisions in Dayaram v. Sudhir Batham, [ (2012)1 SCC 333 ], Sultana Begum v. Prem Chand Jain, [ (1997)1 SCC 373 : 1997 WBLR (SC) 115], Rajasthan State Industrial Development & Investment Corpn. v. Subhash Sindhi Coop. Housing Society, [ (2013)5 SCC 427 ], Shailesh Dhairyawan v. Mohan Balkrishna Lulla [ (2016)3 SCC 619 : (2016)3 WBLR (SC) 401], and Debdas Banerjee v. State of West Bengal [2014 (2) CHN (Cal) 186 : (2014)4 WBLR (Cal) 309], and a passage from Craies on Statute Law, 7th Edition (1971), in support of his submission that the provisions of an enactment have to be harmoniously construed; and; if Sections 8A and 9 are harmoniously construed, the net result is that the certificate issuing authority without a report of the Committee on the social status of a candidate, is not empowered to initiate proceedings for cancellation of a scheduled caste certificate, suo motu. 14. Mr. Bhattacharya has, accordingly, prayed for setting aside of the impugned judgment and order together with the impugned order of the SDO and for restoring Biswajit's position in the school as a Group D staff. 15. Opposing the appeal on behalf of the official respondents, Mr. Dutta first contended that the appeal is devoid of any merit as the reasons assigned by the learned Judge in the impugned judgment and order have not been assailed. Secondly, he contended that the provisions of the 1994 Act do not make it obligatory for the certificate issuing authority to obtain a report of the Committee prior to initiating proceedings, suo motu, for cancellation of a certificate and, therefore, no error was committed by the SDO in registering Misc. Case No. 1 of 2001. Secondly, he contended that the provisions of the 1994 Act do not make it obligatory for the certificate issuing authority to obtain a report of the Committee prior to initiating proceedings, suo motu, for cancellation of a certificate and, therefore, no error was committed by the SDO in registering Misc. Case No. 1 of 2001. Finally, it was contended that there are sufficient reasons in the impugned order dated December 3, 2008 passed by the SDO leading to cancellation of the scheduled caste certificate of Biswajit and that on perusal thereof, we ought to dismiss the appeal. 16. We have heard the learned Advocates for the parties and are of the considered opinion that the appeals are, indeed, devoid of any substance. 17. Since Mr. Bhattacharya has not assailed the reasons assigned by the learned Judge in the impugned judgment and order, we are not called upon to examine its correctness. Even then, we have looked into the impugned judgment and order and record our concurrence with the view expressed by the learned Judge that in view of Section 11 of the 1994 Act, it is permissible for the certificate issuing authority to cancel a scheduled caste certificate, issued prior to the 1994 Act being enforced, in accordance with the provisions of the 1994 Act and the rules framed thereunder. 18. Although Mr. Bhattacharya has not argued that initiation of Misc. Case No. 1 of 2001 was bad on the ground of the decision conveyed by letter dated August 3, 1999 by the SDO, we have examined such point which was available to be raised being a point of law. However, we are inclined to the view that the decision was confined only to the question whether the certificate issued in favour of Biswajit was a genuine document or not, and it was not a decision on the status of Biswajit as a scheduled caste. We are, therefore, of the view that the letter dated August 3, 1999 of the SDO did not stand in the way of verification of the caste status of Biswajit. 19. We now move on to the point urged by Mr. Bhattacharya. Having perused the decisions by him, we are of the considered opinion that the view expressed by the coordinate Bench of this Court in Darvell Investment & Leasing (I) Pvt. Ltd. (supra) sounds the death-knell for the appellant. 19. We now move on to the point urged by Mr. Bhattacharya. Having perused the decisions by him, we are of the considered opinion that the view expressed by the coordinate Bench of this Court in Darvell Investment & Leasing (I) Pvt. Ltd. (supra) sounds the death-knell for the appellant. Having considered the provisions of the 1994 Act, more particularly Sections 8A and 9, the Bench observed that an illegal cancellation of a caste certificate issued under Section 5 of the 1994 Act to a member of the scheduled caste/scheduled tribe community without following the procedure laid down in Section 9(1) read with Rule 3 of the 1995 Rules would undoubtedly be a contravention of the provisions of the 1994 Act, which would be amenable to the supervisory jurisdiction of the Committee under Section 8A(3)(e),(e) and (i) of the 1994 Act. It was also held in paragraph 49 as follows: "49. State Scrutiny Committee is a high powered expert body comprising of the most experienced personnel who have the requisite expertise, experience and machinery at their disposal to make proper enquiry into the social status of an individual whose caste certificate has been illegally cancelled by the Certificate Issuing Authority in contravention of the procedure provided under the Act and the rules framed thereunder, To denude the Committee of such jurisdiction by merely referring to the definition clause in Section 2(a) or its powers under Section 8A(1) of the Act would render the powers engrafted in clauses (c), (e) and (i) of Section 8A(3) otiose and redundant. Such an interpretation would also militate against the real intention of the legislature and deprive a deserving member of the SC/ST community from ventilating his grievances under the statutory scheme against illegal cancellation of his caste certificate in contravention of the provisions of the Act before the high powered expert body which is best suited to enquire into such contraventions. To hold otherwise would defeat both the letter and spirit of the law which seeks to create a plenary expert body to verify social status of individuals and ensure that the deserving members of SC/ST community are not deprived of their just constitutional privileges." 20. Having read the provisions of the 1994 Act, we find the absence of an appellate forum to which an appeal could be carried against an order cancelling a certificate under Section 9(1) of the 1994 Act. Having read the provisions of the 1994 Act, we find the absence of an appellate forum to which an appeal could be carried against an order cancelling a certificate under Section 9(1) of the 1994 Act. We are inclined to the view that the coordinate Bench was mindful of Such absence in the statute and had by judicial interpretation recognized the Committee to be a forum who would have supervisory jurisdiction in respect of orders passed by a certificate issuing authority cancelling certificates earlier issued, without observing the procedure prescribed by the 1994 Act and rules framed thereunder. We have also not found any observation in the said decision that a certificate issuing authority may not suo motu initiate proceedings for Cancellation/impounding/revocation of a certificate if the circumstances so warrant or that a report of the Committee is a condition precedent for initiation of such proceeding. 21. Be that as it may, it is now time to note a decision of the Supreme Court cited by Mr. Bhattacharya on harmonious construction. 22. In Sultana Begum (supra), the Supreme Court in paragraph 15 captured the essence of all the decisions considered by it on harmonious construction by observing as follows: "15. On a conspectus of the case-law indicated above, the following principles are clearly discernible: (1) It is the duty of the Courts to avoid a head on clash between two Sections of the Act and to construe the provisions which appear to be in conflict with each other in such a manner as to harmonies them. (2) The provisions of one Section of a statute cannot be used to defeat the other provisions unless the Court, in spite of its efforts, finds it impossible to effect reconciliation between them. (3) It has to be borne in mind by all the Courts all the time that when there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is the essence of the rule of 'harmonious construction'. (4) The Courts have also to keep in mind that an interpretation which reduces one of the provisions as a 'dead letter' or 'useless lumber' is not harmonious construction. (5) To harmonies is not to destroy any statutory provision or to render it otiose." (italics in original) 23. This is the essence of the rule of 'harmonious construction'. (4) The Courts have also to keep in mind that an interpretation which reduces one of the provisions as a 'dead letter' or 'useless lumber' is not harmonious construction. (5) To harmonies is not to destroy any statutory provision or to render it otiose." (italics in original) 23. We are also of the view, having read Section 9 of the 1994 Act again and again, that a harmonious construction of sub-Sections (1) and (2) would result in ironing out the creases. Our reading of Section 9 read with Rule 3 of the West Bengal Scheduled Castes and Scheduled Tribes (Identification) Rules, 1995 (hereafter the 1995 Rules) is this. In terms of sub-section (1) of Section 9 read with sub-rule (1) of rule 3, either on a complaint by any person or suo motu, the certificate issuing authority upon recording a prima facie satisfaction that a certificate under the 1994 Act has been obtained by any person by furnishing any false information or by misrepresenting any fact or by suppression of any material information or by producing any document which is an act of forgery, may start proceedings for cancellation, impounding or revocation of the certificate, as the case may be. Once the proceedings are commenced, the procedure prescribed in sub-rules (2) to (4) of Rule 3 of the 1995 Rules shall be followed and the proceeding shall be taken to its logical conclusion by an order in writing and, thereafter, further steps as is provided for in sub-rules (5) and (6) are to be taken. The certificate issuing authority also has the power under sub-rule (7) to launch criminal prosecution. Reading of Section 9(1) with Rule 3 does not impose any obligation on the certificate issuing authority to obtain any report of the Committee. If at all the certificate issuing authority in its exercise of power to cancel, impound and/or revoke a certificate contravenes the provisions of Section 9(1) read with Rule 3(1), it would be open to the aggrieved party to invoke the supervisory jurisdiction of the Committee constituted under Section 8A for redress. 24. What Section 9(2) provides is this. If at all the certificate issuing authority in its exercise of power to cancel, impound and/or revoke a certificate contravenes the provisions of Section 9(1) read with Rule 3(1), it would be open to the aggrieved party to invoke the supervisory jurisdiction of the Committee constituted under Section 8A for redress. 24. What Section 9(2) provides is this. Since it starts with a non-obstinate clause, nothing contained in Section 9(1) would fetter the power of the Committee to cancel, impound or revoke a certificate which might have been issued to a person based on false information/misrepresentation of fact/suppression of material information/production of a forged document. The intent of the legislation is that even if the certificate issuing authority does not Initiate any proceeding under Section 9(1), the Committee may, acting as the original authority, initiate proceedings for cancellation, impounding or revocation of a certificate that has been issued to a person based on such false information, misrepresentation, suppression, production of forged document. 25. Our reading of the decision of the coordinate Bench in Darvell Investment & Leasing (I) Pvt. Ltd. (supra) is that, a person whose caste certificate is Cancelled could make the order of cancellation amenable to the supervisory jurisdiction of the Committee or challenge such action by approaching the writ Court in an appropriate case. 26. Although the decision in Bikash Chandra Mahata (supra) lays down that the certificate issuing authority has no authority to cancel a scheduled caste certificate issued in favour of a person and such act is without jurisdiction, we find that such a finding has been returned based on the first Madhuri Patil decision (supra) without considering the effect of Section 9(1) of the Act read with rule 3 of the 1995 Rules, as well as the interpretation of Section 9(2) of the Act by the coordinate Bench in Darvell Investment & Leasing (I) Pvt. Ltd. (supra). We are not inclined to the view that the decision in Bikash Chandra Mahata (supra) lays down the law correctly and accordingly, we record our respectful disagreement therewith. 27. The first and the second Madhuri Patil decisions (supra) have been perused. It appears that even before the first Madhuri Patil decision (supra), the 1994 Act was enacted in the State of West Bengal. 27. The first and the second Madhuri Patil decisions (supra) have been perused. It appears that even before the first Madhuri Patil decision (supra), the 1994 Act was enacted in the State of West Bengal. Considering that the issue emanating for decision is covered by legislation, we hold that any observation made in the decisions in Madhuri Patil (supra) would only be of persuasive value. 28. Law is well-settled that when a person who is not a member of a scheduled caste/tribe obtains a false certificate with a view to gain undue advantage to which he is/was not otherwise entitled, that would amount to commission of fraud calling for immediate corrective action so as to prevent subversion of the constitutional purpose and no leniency can be shown. 29. Having heard our tentative views expressed in course of hearing and having realized that the decision in Darvell Investment & Leasing (I) Pvt. Ltd. (supra) by judicial interpretation of Sections 8A and 9 of the 1994 Act has recognized a power of supervisory jurisdiction being vested in the Committee, Mr. Bhattacharya prayed that Biswajit may be permitted to raise his grievance before the Committee against the order of the SDO cancelling his certificate. 30. We are afraid, the prayer need not be allowed in view of the third point raised by Mr. Dutta to the effect that the certificate issuing authority had assigned appropriate reason for cancellation of the certificate issued in favour of Biswajit. 31. The SDO received in evidence two deeds bearing Nos. 1303 of 1930 and 4029 of 1941, which were executed by the forefathers of Biswajit. Biswajit did not dispute that the sub-caste of his forefathers was noted in the deeds as 'baishya banik' and their surname was 'Saha'. No document could be produced by Biswajit regarding conversion of surname from 'Saha' to 'Das'. Biswajit sought to rely on a deed which, however, was executed not by his forefathers. We were shown a genealogical chart that Biswajit himself had annexed to W.P. 3897(W) of 2002, wherefrom it appears that one Karalbadani Saha (one of the parties to the deed) was the grandmother of Biswajit's father, Sisir [Kumar Das, and the said Karalbadani Saha had been married to one Maheswar Saha (since deceased) whose sub-caste was 'sou', which is a sub-caste of 'sunri'. Based on consideration of the deeds of 1930 and 1941 the SDO arrived at a finding that the sub-caste of Biswajit's forefathers being 'baishya banik', he could not claim to belong to 'sunri' caste and also that the deed produced by Biswajit was irrelevant. Before us, the findings reached by the SDO could not be shown to suffer from any error and, therefore, we find no reason to grant liberty to the appellant to approach the Committee at this distance of time. 32. For the reasons as stated above, the appeals stand dismissed. There shall be no order as to costs. Photocopy of this judgment and order, duly countersigned by the Assistant Court Officer, shall be retained with the records of F.M.A. 608 of 2010. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date. Debi Prosad Dey, J. : I agree.