Case Law Details
M.Karuppanan Vs Tamil Nadu State Level Scrutiny Committee – II (Madras High Court)
Conclusion: A retired Central Excise officer was provided relief by quashing an order that community doubt on the validity of his caste certificate from 1977, even though it was initially evident that assessee belonged to the backward class rather than the ST Community and assessee must file an undertaking that his children would not claim any benefit based on his caste certificate.
Held: Assessee had joined the Central Excise Department in 1978 based on a Scheduled Tribe (ST) certificate stating he belonged to the Katunayakkan community, which was recognized under Article 342 of the Constitution. The controversy began when, decades later, the employer GST and Central Excise sought a verification of assessee’s community status in 2018. Acting on this request, the Tamil Nadu State Level Scrutiny Committee held that the community certificate was not genuine and directed the employer to take action. Assessee challenged the order citing several procedural and legal lapses. High Court found merit in assessee’s contention that Government of India circulars from 2005, 2016, and 2020 clearly barred retrospective verification of community certificates issued to Central Government employees appointed prior to 1995. It was held that the composition of the Scrutiny Committee violated the Supreme Court’s guidelines in Kumari Madhuri Patil v. Addl. Commissioner, Tribal Development, as one of the committee members was not qualified under the norms prescribed by the Apex Court. The Court opined when the Hon’ble Supreme Court had held that the committee ought to be formed with the Director of Social Welfare and Tribal Welfare, then the formation of the above committee was against the direction issued by the Supreme Court. Therefore, the Committee members was against the direction of the Supreme Court, hence the order passed by the Committee was legally not valid. The Court also noted that the enquiry was conducted during the second wave of the COVID-19 pandemic, when assessee being 72 years old was unable to attend in person, and hence was denied a proper opportunity to be heard, violating principles of natural justice. The Court acknowledged that there appeared to be prima facie evidence that assessee might not belong to the claimed ST community, it declined to disturb his service record or financial benefits in view of his long years of service and retirement. However, the Court directed that assessee must file an undertaking that his children would not claim any benefit based on his caste certificate. The Court allowed the writ petition, restrained the department from taking further action, and quashed the impugned order.
FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT
The present writ petition is filed for issuance of a Writ of Certiorari, to quash the impugned order dated 14.03.2022. Through the impugned order, the 1st respondent State Level Scrutiny Committee has held that the caste certificate, dated 03.05.1977, issued by the Tahsildar, Musuri, to the writ petitioner is not genuine. Therefore, the 1st respondent has directed the employer GST and Central Excise to take appropriate action against the individual. Challenging the same, the present writ petition is filed.
2. The brief facts are that the petitioner is aged about 73 years, is a resident of Tiruchirappalli, belongs to Katunayakkan community which is notified by the presidential order under Article 342 to be scheduled tribe in the State of Tamilnadu. After testifying the Tahsildar, Musuri has issued the community certificate to the petitioner on 03.05.1977. Based on the said certificate, the petitioner was appointed as Low Division Clerk in the Central Excise Department on 17.01.1978, then was promoted as Inspector of Central Excise, Thanjavur Division. Thereafter, the Collector of Customs and Excise, Trichy, requested the District Collector to verify the veracity of the petitioner’s claim that he belonged to Hindu Katunayakam scheduled tribe, vide letter, dated 04.07.1985. On discrete enquiry by the Revenue Divisional Officer, Musuri, a report has been sent to the District Collector on 07.02.1990 that the petitioner belongs to Hindu Vedarnayakar community classified as backward class. Based on the report, the District Collector cancelled the community certificate, vide proceedings, dated 20.12.1990 and the cancellation was intimated to the petitioner’s employer on 21.05.1993. Hence, a charge memo, dated 27.07.1983 was issued. The contention of the petitioner is that only after the receipt of charge memo, it came to the knowledge of the petitioner that the District Collector has cancelled the community certificate. Challenging the same, W.P.No.17287 of 1993 was filed and the same was dismissed on 17.09.2000, then W.A.No.2252 of 2000 was filed which was disposed by directing the petitioner to approach the State Level Scrutiny Committee within a period of two weeks and the Committee was directed to decide the issue without reference to the observations made in the Writ Court and also directed the employer not to disengage the petitioner from service, if he had not been removed from service. While that being so, the 2nd respondent, the employer vide proceedings, dated 13.03.2018, had requested the Government to enquire and ascertain the genuineness of ST certificate issued to the petitioner.
3. The contention of the petitioner is that the Government of India has issued guidelines in the following office memorandum that the verification of ST certificates shall be undertaken for the employee who had been appointed after 1995 and the validity of any scheduled tribe certificate issued to employees prior to 1995 ought not to be subjected to the verification process and no action can be taken who were appointed prior to 1995:
i. DOP & T OM No.230/08/2005-AVD II, dated 25.05.2005
ii. DO & PT OM No.36011/3/2005-ESTT(RES) dated 09.09.2005
The same is also reaffirmed by the CVC Circular No.98/DSP/9(Part II), dated 07.03.2016, wherein it clearly states that no action should be taken on the basis of anonymous complaints and no enquiry is to be caused as to the genuineness of a community certificate in respect of any employee of the Central Services if appointed prior to 1995. The same has also been reiterated by the Central Government in OM No. 57/1/1/SCTC/2019, dated 24.12.2020 and the same is binding on the officers including the 2nd respondent. Therefore, the very reference made by the 2nd respondent in proceedings, dated 13.03.2018, seeking verification of the community certificate, when the petitioner was appointed on 17.01.1978 is without authority of law and lacks jurisdiction. Further, the Scrutiny Committee members were not appointed as per the dictum of the Hon’ble Supreme Court in Kumari Madhuri Patel Vs. Additional Commissioner, Tribal Development, reported in 1994 (6) SCC 241. In the present case, the member Mr.A.S.Mohanram is the Deputy Conservator of Forest and is not a director of Social Welfare and Tribal Welfare. Hence, the committee is constituted against the guidelines of the Hon’ble Apex Court. The constitution of such committee was considered in W.P. (MD)No15687 of 2021 and the Division Bench has granted stay, dated 02.09.2021. The petitioner is a similarly placed person. Hence, on illegal reference to an illegal committee, the impugned order passed by the committee may become an illegal order. Further, the committee has undertaken the enquiry during the second wave of COVID pandemic. The petitioner who was aged 72 years could not attend the enquiry. Hence, he communicated to the committee regarding his inability to appear. When the impugned order was passed without affording adequate opportunity of hearing, the same violates the principles of natural justice. Hence, on these grounds the present writ petition is filed.
4. The 1strespondent had submitted the notes of submission wherein it is stated that the individual was requested to attend the enquiry on 28.05.2021 but he sent a letter that due to COVID 19, he could not attend the enquiry. Hence, the enquiry was adjourned to 16.08.2021 and he did not attend the enquiry. But stated that since he joined duty on 17.01.1978, i.e., before 1995, the verification of his community certificate by the State Level Scrutiny Committee will not be applicable to him. Thereafter, one more opportunity was granted to him to appear on 14.02.2022. Since the petitioner did not appear, based on the available facts and records, the petitioner’s community certificate was declared as not genuine and there is no infirmity in the order. Hence, the 1st respondent prayed to dismiss the writ petition.
5. The 2ndrespondent has also filed notes for submission wherein it is stated that based on the letter dated 12/15.04.1985 received from the Director of SC and STs, a reference was made to the District Collector to verify the genuineness of the community certificate. The Deputy Superintendent of Police, Social Justice and Human Rights Wing had conducted detailed enquiry wherein it is found out that the petitioner’s community was recorded as Vedabaliga in the school admission register issued by Headmaster, Government Boys Higher Secondary School, statement obtained from Pichaimuthu, who is the petitioner’s sister’s husband, it is evident that the petitioner belongs to Hindu Vedar community. Therefore, the State Scrutiny Committee has rightly come to the conclusion that the certificate issued by the petitioner is not genuine. Hence, the 2nd respondent prayed to dismiss the writ petition.
6. Heard Mr.Mahaboob Athiff, the Learned Counsel appearing for the petitioner, Mr.M.Sarangan, the Learned Additional Government Pleader appearing for the 1strespondent and Mr.N.Dilip Kumar, the Learned Standing Counsel appearing for the 2nd respondent and perused the records.
7. The primary contention of the petitioner is that the committee has undertaken the enquiry during the second wave of COVID pandemic. The petitioner who was aged 72 years could not attend the enquiry and communicated to the committee regarding his inability to appear, inspite of the same the impugned order is passed, thereby there is violation of principles of natural justice. On the other hand, the Learned Counsel appearing for the 2ndrespondent would submit that the individual was requested to attend the enquiry on 28.05.2021 but he sent a letter that due to COVID 19, he could not attend the enquiry. Hence, the enquiry was adjourned to 16.08.2021, but the petitioner did not attend the enquiry but stated he had joined duty on 17.01.1978, i.e., before 1995, the verification of his community certificate by the State Level Scrutiny Committee will not arise based on the guidelines of Central Government. Thereafter, one more opportunity was granted to him to appear on 14.02.2022, since the petitioner did not appear, based on the available facts and records, the petitioner’s community certificate was declared as not genuine and there is no infirmity in the order. From the above facts it is evident inspite of opportunities the petitioner did not appear, hence it cannot be stated there is violation of principles of natural justice.
8. The next contention of the petitioner is that the Central Government had issued guidelines that the verification of ST certificates shall be undertaken for the employee who had been appointed after 1995 and the validity of any SC and ST certificate issued to employees prior to 1995 ought not to be subjected to the verification process and no action can be taken who were appointed prior to 1995 and the same is reaffirmed by Central Vigilance Commission (CVC) in its circular and had relied on the following Circulars / Guidelines:
i. DOP & T OM No.230/08/2005-AVD II, dated 25.05.2005
ii. DO & PT OM No.36011/3/2005-ESTT(RES) dated 09.09.2005
iii. OM No. 57/1/1/SCTC/2019, dated 24.12.2020
iv. CVC Circular No.98/DSP/9(Part II), dated 07.03.2016
It is seen from the above circulars from 2005 onwards it is consistently stated that the employee recruited prior to 1995 need not be subjected to verification. When the two circulars issued in the year 2005 were in force, the reference by the employer on 13.03.2018 is against the said circulars. Also, against the circular of CVC issued in the year 2016 and also the circular of Central Government issued in the year 2020. Therefore, the Court is of the considered opinion that the very reference itself is against the circulars.
9. The next contention of the petitioner is that the Scrutiny Committee members were not appointed as per the dictum of the Hon’ble Supreme Court in Kumari Madhuri Patel Vs. Additional Commissioner, Tribal Development, reported in 1994 (6) SCC 241. In the present case, the member Mr.A.S.Mohanram is the Deputy Conservator of Forest and is not a Director of Social Welfare and Tribal Welfare. Hence, the committee is constituted against the guidelines of the Apex Court. The Court is of the considered opinion when the Hon’ble Supreme Court had held that the committee ought to be formed with the Director of Social Welfare and Tribal Welfare, then the formation of the above committee is against the direction issued by the Supreme Court. Therefore, the Court is of the considered opinion that the Committee members is against the direction of the
10. Having held so, the Court cannot just brush aside that prima facie the allegation against the petitioner is proved and the petitioner does not belong to Katunayakkan community. But the petitioner had served in the said post for more than 30 years and attained superannuation in the year 2009, now the petitioner is 73 years old. Therefore, at this stage it will unsettle the petitioner’s life. The entire salary cannot be recovered since the petitioner would be put to financial burden. The Government of India has issued guidelines periodically mandating the employers to undertake verification at the earliest point of time preferably, at the time of joining the service. In a similar issue, the Hon’ble Supreme Court in SLP(C)No.24458 of 2019, dated 03.03.2023, has held as under:
“It is submitted that the respondent No.1 who served in the Railways has superannuated on 28.02.2022 and therefore, the exercise in this case would largely be academic on the aspect of whether she belonged to the claimed Scheduled Tribe category. Considering the above, we deem it is appropriate to order for closure of the proceedings. Accordingly, the Special leave Petition stands disposed of.”
The Division Bench of this Court in W.P.No.34178 of 2023, dated 11.01.2024, has held as under:
“6. Considering the facts and circumstances of the case and in the light of the above decision of the Hon’ble Apex Court, we are inclined to set aside the impugned order passed by the Tamil Nadu State Level Scrutiny Committee- III in proceedings No.12921/CV-6/2020-7, dated 28.01.2022. Accordingly, the impugned order passed by the first respondent is hereby set aside and the Writ Petition stands allowed. The 2nd respondent Bank is directed to extend all the terminal benefits to the petitioner in accordance with law. The said exercise shall be done within a period of eight (8) weeks from the date of receipt of a copy of this order.
7. However, it is made clear that if the petitioner claims community certificate for his children based on his community certificate, then necessarily, the petitioner’s community certificate has to be tested by the respondent. No costs. Consequently, connected miscellaneous petitions are closed.”
11. Therefore, following the above judgments the Court is of the considered opinion that the petitioner is entitled to relief. However, with a condition that in future the petitioner’s children shall not seek any community certificate based on the petitioner’s community certificate. The petitioner shall submit an undertaking affidavit to the employer within a period of four weeks from the date of receipt of the copy of the order. On such receipt the employer is restrained from taking any further action based on the impugned order dated 14.03.2022. stated supra.
12. With the above said observations, the writ petition is allowed as stated supra. No costs. Consequently, connected miscellaneous petition is closed.
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