Vidya Narayan And Anr. vs Principal Secretary (Labour) And ...
2015 Latest Caselaw 1971 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 28
 
Case :- WRIT - A No. - 62465 of 2013
 
Petitioner :- Vidya Narayan And Anr.
 
Respondent :- Principal Secretary (Labour) And 6 Ors.
 
Counsel for Petitioner :- V.K.Singh,Manvendra Nath Singh
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Gupta
 
Connected with 
 
Case :- WRIT - A No. - 66529 of 2013
 
Petitioner :- Girja Sharan
 
Respondent :- State Of U.P.& 6 Ors.
 
Counsel for Petitioner :- Sushil Kumar Pal,Ashok Khare,S.K.Pal
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Mahesh Chandra Tripathi,J.

1. Heard Shri Manvendra Nath Singh, learned counsel for the petitioners and Shri S.C. Pathak, learned Standing Counsel for the respondents.

2. In these writ petitions, the petitioners have prayed for quashing the impugned office Memorandum dated 11.9.2013 issued by the Principal Secretary (Labour), Government of UP, Lucknow and have further prayed for direction commanding the respondents to  treat the petitioner no.2 in Writ A No.62465 of 2013 and the petitioner in Writ A No.66529 of 2013 in continuous service and provide all the consequential benefits and pay their salary and also give entire retiral benefit of petitioner no.1 in Writ A No.62465 of 2013.

3. All the petitioners are real brothers and are resident of Village Makrikheda, Majra Bisai Kapoor Bangar, Kanpur Nagar. They belong to 'Majhwar' by caste, which comes under the category of Scheduled Caste in view of Government Orders dated 25.5.1957 and 29.8.1977. The caste 'Majhwar' is commonly known as 'Kewat', 'Mallah', 'Rajgaur', 'Muzafir'. The petitioners have been issued caste certificates of 'Majhwar' under the Scheduled Caste category on 23.7.1973 & 10.1.1974 from the office of Collector, Kanpur, which have not been cancelled or suspended till date and the same are still operative.

4. Shri Vidya Narayan-the petitioner no.1 (in Writ A No.62465 of 2013) was appointed as Junior Clerk in the year 1974. He retired as Administrative Officer on 31.7.2012 after attaining the age of superannuation. The petitioner no.2 (in Writ A No.62465 of 2013) was appointed as Stenographer on 18th August, 1989 in the office of respondent no.2. Thereafter, he was promoted as Labour Enforcement Officer.  The petitioner (in Writ A No.66529 of 2013) was appointed as Class-IV employee (Peon-cum-Chaukidar) on 26.3.1981. He joined the service on 31.3.1981 in the office of Home Inspector, Industrial Labour Colony, Shastri Nagar, Kanpur and thereafter, his services were confirmed. Before passing the impugned order, he was working in the office of Labour Head Office, Kanpur.

5. On account of village rivalry, an ex-Member of Legislative Assembly made a complaint alleging that the petitioners belong to 'Mallah' caste, which belongs to Other Backward Caste and their caste certificates are illegal and on account of these caste certificates, their appointments are also illegal. On the aforesaid complaint, an enquiry was conducted and the report was submitted on 15th October, 1996 stating that the petitioners belong to 'Majhwar' caste, which is a Scheduled Caste. The report dated 15.10.1996 was referred to the State Government on 31.1.1997, which was accepted and the matter had been closed. After a period of ten years, again a complaint was made by respondent no.7 with the same allegation that the petitioners do not belong to Scheduled Caste category and their services are liable to be terminated. On the aforesaid complaint, the State Government sought a report from the office of Labour Commissioner. The report was submitted to the State Government on 1.6.2007/13.6.2007 stating therein that the petitioners belong to Scheduled Caste.

6. Again the respondent no.7 approached to the office of Collector, Kanpur and got undue influence over the concerned Tehsildar, who submitted a report dated 24.4.2008 to the office of Collector, Kanpur. The report was forwarded to the District Magistrate, Kanpur on 6.9.2008 for verifying the caste certificates of the petitioners. After receiving the letter dated 6.9.2009 the Tehsildar, Tehsil Sadar, District Kanpur Nagar submitted a report on 10.11.2008 to the District Magistrate. Thereafter, the District Magistrate forwarded the said report to the State Government on 12.11.2008. The matter was referred to the respondent no.2 for a detailed enquiry. Thereafter, the Labour Commissioner, U.P. at Kanpur appointed an enquiry officer, who submitted the report on 5.7.2012.  The aforesaid enquiry report was considered and found to be incomplete. Again another enquiry officer was appointed, who submitted his report on 9.7.2013.

7. Thereafter, the respondent no.7 filed a Writ Petition No.877 (S/B) of 2012 in the Lucknow Bench of this Court. The aforesaid writ petition was disposed of on 12.3.2013 directing the Principal Secretary (Labour), Government of UP, Lucknow to look into the matter and take a decision after giving opportunity of hearing to the petitioners in accordance with law within four months. In pursuance of the directions of this Court dated 12.3.2013, the respondent no.1 proceeded with the matter and passed the impugned order on 11.9.2013 by which the petitioner no.1 has been denied for all retiral benefits and the services of other petitioners have been dismissed.

8. Learned counsel for the petitioners submits that admittedly the petitioners' father and forefather are resident of District Unnao, where the caste Mallaha/Kewat/Manji is notified as Scheduled Caste. The Labour Commissioner, U.P. at Kanpur is the competent authority of the petitioners and as such, the impugned order passed by the Principal Secretary (Labour) Government of UP, Lucknow is without jurisdiction. The petitioners were not served with any charge sheet and no enquiry officer in pursuance thereof had been appointed and without having any enquiry, the impugned order has been passed against the petitioners. Rules 7 to 9 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 provide that for punishment, there shall be issuance of charge sheet to the employee and also enquiry officer will conduct the enquiry and reasonable opportunity for submitting the defence will be given to the employee and thereof, after having report for proposed punishment, the same shall be served upon the employee and then the order shall be passed but in the present case, nothing has been done and the impugned order has been passed against the petitioners, which is liable to be quashed.

9. Learned counsel for the petitioners submits that the respondent no.1 forfeited the retiral benefits of petitioner no.1 and dismissed the services of other petitioners without considering the enquiry report dated 5.7.2012 and the enquiry report of 2013. The State Government was not satisfied with the report dated 10.11.2008/24.4.2008 given by the Tehsildar, Sadar, District Kanpur Nagar and the direction was given by the State Government for conducting the detailed enquiry. Subsequently, the report was submitted by the enquiry officer on 5.7.2012 and again further enquiry report undated of 2013 (Annexure-11) but without considering all these enquiry reports, the impugned order has been passed on the basis of report of the Tehsildar.

10. On the other hand, learned Standing Counsel submits that the respondents had acted absolutely in accordance with law. When it had come in the notice of the respondents that the petitioners do not belong to Scheduled Caste community but they belong to a backward caste, the petitioner no.1 was deprived from the retiral benefits and the services of other petitioners were dismissed. He submits that if the petitioners agree, the matter may be referred to the District Level Caste Scrutiny Committee in view of judgment of Hon'ble Supreme Court in Kumari Madhuri Patil Vs. Additional Commissioner, 1994 (6) SCC 241.

11. Learned counsel for the petitioners has placed reliance on a Division Bench decision of this Court passed in Writ Petition No.2252 of 2013 (Bindra Prasad Gond v. State of U.P. & Ors.). He has also placed reliance on a judgment dated 5.8.2014 of this Court in Writ-A No.36990 of 2008 (Bindra Prasad v. State of U.P. & Ors.), in which the Court observed as under:-

"Learned counsel for the petitioner submits that the petitioner has filed another Civil Misc. Writ Petition No. 2252 of 2013 (Bindra Prasad Gond Vs. State of U.P. and others), by which the petitioner has challenged the cancellation of his caste certificate and the decision of the High Power Caste Scrutiny Committee, and the Division Bench vide order dated 06.02.2014 had allowed the writ petition with following observation:-

"We also take note of the fact that the petitioner who is a class IV employee has been made to approach the Court again and again for declaration of his status as Scheduled Tribe. Even after the dictum of the Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra), which was decided on 02.09.1994, the opposite parties did not adopt the procedure mentioned therein for verifying the social status of the petitioner rather the Tehsildar went on canceling his caste certificate on the pretext or other, with the result, the petitioner had to approach this Court again and again, at least 5 times. Even after passing of the judgment by this Court on 09.04.2010, the authorities did not take any action till the petitioner initiated contempt proceedings against them. The petitioner has suffered mental agony and incurred expenses on account of these litigations. Therefore, it is a fit case where the respondent no.1 deserves to be saddled with appropriate cost.

Considering the long period of litigation, specially, the facts that the report of the Vigilance Cell is not alleged to have been obtained fraudulently, we do not deem it fit to relegate the matter back to the authorities again. Since we are quashing the impugned decision of the Caste Scrutiny Committee, the caste certificate dated 17.01.2004 issued to the petitioner shall stand restored and the petitioner shall be treated as belonging to the Gond caste, a Scheduled Tribe.

For the reasons stated aforesaid, the impugned order of the Caste Scrutiny Committee dated 28.12.20012, cannot be sustained and is quashed.

The writ petition is allowed with cost.

The respondent no.1 will pay a sum of Rs. 25,000/- to the petitioner for this vexatious litigation within four weeks from the date of production of a certified copy of this order."

The Division Bench while allowing the writ petition no. 2252 of 2013 has clearly held that "This is the 5th round of litigation by the petitioner, who is a Driver in the Agriculture department of the Government of Uttar Pradesh, seeking restoration of his status as a Scheduled Tribe person.

Learned counsel for the petitioner submits that in view of the decision made by the Division Bench in Civil Misc. Writ Petition No. 2252 of 2013 dated 06.02.2014, by which the impugned decision of the High Power Caste Scrutiny Committee, has been quashed and direction has already been issued to the respondents to restore the caste certificate, which was issued to the petitioner on 17.01.2004, treating him as Gond caste (scheduled tribe). The present writ petition is liable to be allowed on the ground that petitioner admittedly belongs to Scheduled Tribes and his caste certificate has been restored.

Therefore, in view of the decision taken by the Division Bench in Civil Misc. Writ Petition No. 2252 of 2013 dated 06.02.2014, the sole reason for passing the impugned order dated 08.02.2008 passed by the respondent no.3 is no more survives specially on the ground that once the Division Bench has already restored the caste certificate of the petitioner as scheduled tribes then the order impugned dated 08.02.2008 is unsustainable and liable to be quashed.

Accordingly, in view of the aforesaid facts and circumstances, I am of the view, that the order dated 08.02.2008 is unsustainable and accordingly quashed.

Accordingly, the writ petition is allowed."

12. Learned counsel for the petitioners has also placed reliance on a Division Bench judgment of this Court in Praveen Kumar v. State of U.P. & Ors. reported in 2014 (8) ADJ 690 (DB), the relevant paragraphs of which are reproduced as under:-

"In the communication of the Tehsildar dated 12.10.2009, it is nowhere mentioned that there was any complaint with regard to the issuance of the caste certificate in favour of the petitioner. By the communication of the Commandant of C.R.P.F dated 3.9.2009, the Tehsildar was required to only verify the issuance of the caste certificate and not its correctness. Once the Tehsildar had verified the issuance of the said certificate, it had no power or jurisdiction to provide for review of the issuance of the said caste certificate or recommend for its cancellation, specially when there was no complaint by any authority or person with regard to the correctness of the same.

If the Tehsildar is allowed to initiate suo motu proceeding for cancellation, without there being any particular material or complaint with regard to issuance of such caste certificate, the same would create unnecessary complication, as any new Tehsildar, who is subsequently posted and is not satisfied with the person or his family in whose favour the certificate has been issued, can initiate proceedings for cancellation of caste certificate which may have been validly issued in favour of a particular person after due investigation.

In the present case, the communication of the Tehsildar clearly shows that he has proceeded on the presumption that the petitioner belongs to the Kamkar/Kahar caste, whereas there was no substantial material or document with Tehsildar in support of the same. Prior to the issuance of the said communication, the Tehsildar had not even given the petitioner any opportunity to show cause as to why the proceedings for cancellation of his caste certificate was to be initiated against him. As such, very initiation of the proceedings for cancellation of the caste certificate of the petitioner cannot be justified in law."

13. In the present matter, the complaint was made by Shri Basir Khan-respondent no.7 with the allegation that the petitioners do not belong to Scheduled Caste category and as such their services were liable to be terminated. Various enquiries had been made in the matter as indicated above but finally the respondent no.7 had approached to the Lucknow Bench of this Court and filed  Writ Petition No.877 (SB) of 2012 (Bashir Khan vs. Shailesh Krishna, I.A.S. & 4 ors). Hon'ble Division Bench vide an order had disposed of the writ petition with following observation:-

"Submission of the learned counsel for the petitioner is that the respondent were appointed under Scheduled Caste category though they belong to OBC category.

We dispose of this writ petition directing the Principal Secretary Labour Department, Civil Secretariat, to look into the matter and take decision after giving opportunity of hearing to the petitioner in accordance with law and to pass a speaking and reasoned order expeditiously, within four months from the date of production of certified copy of this order and communicate the decision.

Writ petition is accordingly disposed of."

14. In compliance of the aforesaid order, the present impugned order has been passed. It is admitted position that the petitioners were appointed against the substantive posts in the years 1974, 1989 and 1981 respectively and after considerable period of time, they discharged their respective duties in the department with utmost satisfaction and only on the basis of the aforesaid complaint, the present impugned order has been passed. At no point of time the alleged caste certificate had ever been cancelled by the competent authority and this is also surprising that the petitioners are confirmed Government employees and at no point of time the Competent Authority had initiated any proceedings under the Rules of 1999 and the present impugned order has been passed. The Rules of 1999 clearly provide exhaustive procedures for taking a disciplinary action against the Government employee whereas the show cause notice, charge sheet etc. are to be given to the delinquent employee and the full fledged enquiry is to take place. At no point of time, the department had taken any step for initiation of disciplinary enquiry as contemplated in the Rules of 1999 but in the garb of directions issued by the Lucknow Bench of this Court on the complaint made by respondent no.7, the direction was issued to the Principal Secretary to decide the grievance of the petitioners. The direction does not give any leverage or right to terminate the services of the petitioners without following the procedures given in the Rules of 1999. 

15. This is admitted situation that no enquiry has been made in the matter and at no point of time, in pursuance of the Rules of 1999 the petitioners had not been afforded any opportunity in this regard. Once the caste certificates issued by the competent authority had not been cancelled or recalled, there was no question to terminate the services of the petitioners as confirmed Government employees.

16. The Court has asked a specific query from learned Standing Counsel whether at any point of time any detailed enquiry has been made under the Rules of 1999. Learned Standing Counsel has tried to defend the impugned order on the ground that once the direction was issued by Hon'ble Division Bench of this Court and in compliance thereof, it was incumbent upon the Principal Secretary to take an appropriate decision in the matter and as such, the services of the petitioners were terminated.

17. In A.K. Kraipak and others Vs. Union of India and Others, reported in (1970) 1 SCR 457, Hon'ble Supreme Court held that the concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (i) no one shall be a Judge in his own cause (nemo dabet esse judex propria causa) and (ii) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice." (P. 468-69).

18. The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fair play in action." As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, I am of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. No doubt, the extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement.

19. Having heard learned counsel for the parties, perusing the relevant material on record and considering the judgments cited at Bar, I find that the petitioners were issued caste certificates of 'Majhwar' treating them to be a Scheduled Caste and on the basis of the same caste certificates, they obtained appointment but without affording any opportunity of hearing to the petitioners and initiating any proceedings under the Rules of 1999, the petitioners' services have been dispensed with. This is not the case that the petitioners have fabricated the caste certificates but in fact, the same had been issued by the Competent Authority in different years at least 30 years' before. Inspite of above enquiries, at no point of time the said caste certificates had ever been cancelled by the Competent Authority and still the same are intact.

20. In view of above, the impugned order dated 11.9.2013 cannot be sustained and is set aside. However, the department is not precluded for initiation of any departmental enquiry in accordance with law.

21. So far as the petitioner no.1 in Writ A No.62465 of 2013 is concerned, he has already retired on 31.7.2012 on the post of Administrative Officer and therefore, at this stage, he cannot be reinstated but he is entitled for all retiral benefits. The respondents are directed to finalise the pension of the petitioner no.1 and quantify  and pay the retiral benefits payable to him  within a period of six weeks. With regard to  petitioner no.2 in Writ A No.62465 of 2013 and the petitioner in Writ A No.66529 of 2013), the respondents are directed to reinstate them in service and pay the entire arrears from the date of dismissal to the date of their reinstatement within a period of two months from the date of filing of a certified copy of this order.

22. With the aforesaid directions, the writ petition succeeds and is allowed.

Order Date :- 25.8.2015

RKP