The Hon'Ble Justice vs M. Velumani
2023 Latest Caselaw 7319 Cal

                    IN THE HIGH COURT AT CALCUTTA
                     CIVIL APPELLATE JURISDICTION
                            (APPELLATE SIDE)


Present:
The Hon'ble Justice V. M. Velumani
              &
The Hon'ble Justice Rai Chattopadhyay


                         MAT 1014 of 2017

                          Jitendra Prasad
                                 Vs.
                        Union of India & Ors.

For the Appellant                     : Mr. Pratik Majumder


For the Respondents                   : Mr. Ashok Kr. Chakraborty


Hearing concluded on: 17/10/2023

Judgment on: 19/10/2023


V.M. Velumani, J.

1. The present appeal is filed challenging the order dated 16th

May, 2017, made in WP 15724(W) of 2013 filed by the appellant.

2. According to the appellant, he was appointed on 2nd June, 1977

as Constable in the Railway Protection Force (in short, 'RPF') of

Eastern Railway on Scheduled Tribe category. The appellant was

promoted as Head Constable, Assistant Sub-Inspector and Sub-

Inspector. At the time of initial appointment and on each promotion,

the caste certificate produced by the appellant was verified and its

genuineness was never disputed.

3. While so, on 21st December, 2010, a charge-sheet was issued to

the petitioner alleging that he belongs to Other Backward Community,

misled and defrauded Railway administration by furnishing forged

certificate of belonging to Scheduled Tribe community and

fraudulently availed the benefit of reservation. Not being satisfied with

the explanation submitted by the appellant, the domestic enquiry was

conducted. In the domestic enquiry, the respondent examined seven

witnesses and the appellant cross-examined them. The enquiry

officer, based on the materials placed before him, gave a report that

the charges levelled against the petitioner was proved. The

Disciplinary Authority by the order dated 21st January, 2012,

dismissed the appellant from service. The Appeal and Revision filed by

the appellant were also dismissed.

4. Challenging the orders of the Disciplinary Authority, Appellate

Authority and the Revisional Authority, appellant has filed Writ

Petition No. 15724(W) of 2013.

The case of the appellant before the learned Single Judge:

5. Before the learned Single Judge, the appellant contended that:

(i) The Dy. Chief Security Commissioner, who acted as

Disciplinary Authority, did not have jurisdiction and power

to dismiss the appellant as per Schedule III of the Railway

Protection Force Rules, 1987.

(ii) The Addl. Chief Security Commissioner could not have acted

as Appellate Authority as the posts of Addl. Chief Security

Commissioner and the Dy. Chief Security Commissioner are

parallel and coordinate posts.

(iii) Originally, only three witnesses were mentioned.

Subsequently, the enquiry officer examined additional four

witnesses in violation of Rule 153.17 of the Railway

Protection Force Rules, 1987. Enquiry officer did not record

reasons for examining additional four witnesses contrary to

the said Rules which vitiated the entire proceedings.

(iv) The de-facto complainant, the Assistant Security Officer was

examined as P.W. 7. Enquiry Officer was an Inspector lower

in rank than de-facto complainant. P.W. 7 and enquiry

officer is biased against the appellant.

(v) The respondent did not examine Additional District

Magistrate (ADM), who had issued the Scheduled Caste

certificate to the appellant.

(vi) The Other Backward Community category came into

existence only as per the judgment of the Hon'ble Apex

Court dated 16th November, 1992 and National Commission

for Backward Classes Act with effect from 2nd April, 1993.

When the ADM issued Scheduled Tribe Certificate to the

appellant, there was no Other Backward Class community.

(vii) One of the additional witnesses was legal expert. In such

circumstances, enquiry officer erroneously rejected the

request of the appellant for assistance of defence friend. The

appellant is entitled to defence friend as per Rule 153.8 of

the Railway Protection Force Rules, 1987. The rejection of

the appellant is arbitrary and in violation of principles of

natural justice.

6. In addition to the above contention, the learned counsel

appearing for the appellant relied on the following judgments:

(i) (2013) 16 SCC 526 (Shalini vs. New English High

School Association)

(ii) (2012) 8 SCC 430 (Kavita Solunke vs. State of

Maharashtra)

(iii) (2012) 1 SCC 549 (Dattu S/O Namdev Thakur vs. State

of Maharashtra)

(iv) AIR 2015 SC 3024 (Rajeshwar Baburao Bone vs. State

of Maharashtra)

(v) (2001) 1 SCC 4 (State of Maharashtra vs. Milind)

(vi) 1983 (1) CLJ 8 (Anandram Jiandrai Vaswani vs. Union

of India)

(vii) AIR 1983 SC 109 (The Board of Trustees of the Port of

Bombay vs. DilipkumarRaghavendranath Nadkarni)

(viii) 2013 (3) CLJ 357 (Monotosh Kanti Das vs. Union of

India

The case of the respondent before the learned Single Judge:

7. The respondent opposed the claim of the appellant and

submitted that:

(i) Judicial Review of domestic enquiry is limited. If enquiry

report and Disciplinary Authorities' orders are based on

some evidence, the Court will not interfere. There was

sufficient evidence on record to establish the charges of

securing appointment by practicing fraud.

(ii) The appellant did not raise any objection that Rule 153.17

was violated before the enquiry officer, Disciplinary,

Appellate and Revisional Authorities. The appellant was

allowed to cross-examine all the witnesses.

(iii) The Contention that the enquiry officer was likely to be bias

since the de-facto complainant, P.W. 7 was superior in rank

to him is not maintainable as the appellant did not raise

such contention before the enquiry officer and did not seek

change of enquiry officer. In view of the same, the judgment

of Anandram Jiandrai Vaswani (supra) relied on by the

appellant is not applicable to the facts of the present case as

there was substantial rule in the Customs Manual and the

charged officer sought for change of enquiry officer.

(iv) As per Schedule III of the Railway Protection Force Rules,

1987, the Dy. Chief Security Commissioner has power to be

the Disciplinary Authority and pass the order of dismissal.

(v) Initially, the appellant sought for defence assistant.

Subsequently, by the letter dated 30th April, 2011, informed

the enquiry officer that he would himself conduct his case in

the domestic enquiry. The appellant suppressed this fact.

(vi) The appellant obtained benefit of employment by practicing

fraud. Fraud unravels everything.

8. In support of his contention, the learned counsel for the

respondent relied on the following judgments:

(i) (1995) 6 SCC 750 (Uniion of India vs. B.C. Chaturvedi)

(ii) (2000) 1 SCC 416 (High Court of Judicature of Bombay

vs. Shashikant S. Patil

(iii) (2011) 4 SCC 584 (State Bank of Bikaner and Jaipur vs.

Nemi Chand Nalwaya

(iv) The judgment of the Hon'ble Apex Court dated 3rd March,

2008 passed in Appeal (C) No. 3964 of 2002 (D.G.

Railway Protection Force &Ors. Vs. K. Raghuram Babu)

(v) (2003) 8 SCC 311 (Ram Preeti Yadav vs. U.P. Board of

High School and Intermediate Education

(vi) (2011) 15 SCC 111 (District Primary School Council,

West Bengal vs. Mritunjoy Das

(vii) (2013) 16 SCC 526 (Shalini vs. New English High School

Association)

The Finding of the learned Single Judge:

9. The learned Single Judge based on the pleadings, contentions

and judgments relied on by the parties, framed following seven issues:

i. Whether the Disciplinary Authority lacked jurisdiction to

pass the order of dismissal as contended by the petitioner?

ii. Whether it was incompetent for the Addl. Chief Security

Commissioner to act as the Appellate Authority as

contended by the petitioner?

iii. Whether there was breach of Rule 153.17 of the RPF Rules,

1987 as contended by the petitioner?

iv. Whether there was a real possibility of the Enquiry Officer

being biased against the petitioner as argued on his behalf?

v. Whether non-examination of the ADM who had issued the

Scheduled Caste certificate in question vitiated the enquiry

proceeding as urged on behalf of the petitioner?

vi. Whether the enquiry proceeding was vitiated by reason of

the petitioner's request for assistance in defending himself

not being granted, as contended by the petitioner?

vii. Whether there is any other ground on which the orders

under challenge should be interfered with?

10. After considering the above seven issues, the learned Single

Judge by the order dated 16th May, 2017, dismissed the writ petition.

11. Challenging the said order of dismissal, the appellant has come

out with the present appeal.

12. The appellant has raised various grounds as contended in the

writ petition and referred to the grounds raised in the appeal and

further contended that:

i. Learned Single Judge failed to frame any issue with regard

to the Scheduled Tribe status of the appellant.

ii. The learned Single Judge failed to consider the Scheduled

Tribe Community certificate was issued to the appellant in

1976 whereas Other Backward Class community came into

existence in 1992 as per the judgment of the Hon'ble Apex

Court. The Backward Class Community Ordinance and Act

came into force subsequently with effect from 2nd April,

1993.

iii. The genuineness of Scheduled Tribe certificate can be

decided only by special bodies as Caste Scrutiny Committee

consisting of persons with specialised knowledge. The

employer has no jurisdiction or power to decide the

genuineness of Scheduled Tribe certificate and whether

employee belongs to Scheduled Tribe community or not.

iv. The competent person to depose about genuineness of the

Scheduled Tribe certificate produced by the appellant is the

ADM who issued the said certificate. Failure to examine the

ADM who issued the certificate is fatal to the case. The

learned Single Judge without considering the above facts

erroneously held that respondent proved the charges of

forgery of the certificate by examining other witnesses.

v. The learned Single Judge failed to consider that the

appellant was appointed in the year 1976 and charge memo

issued to him in the year 2011, after 34 years of entry to his

service. In the intervening period, appellant was promoted

as Head Constable, Assistant Sub-Inspector and Sub-

Inspector. Every time of promotion, genuineness of

community certificate was verified and found to be genuine.

vi. The learned Single Judge failed to consider that the

appellant is entitled to the benefits already accrued to him

including continuity in service, but not entitled to any

further benefit of reservation.

vii. The learned counsel in support of his contention, relied on

the following two judgments relied on before the learned

Single Judge:

i. (2012) 1 SCC 549 (Dattu S/O Namdev Thakur vs. State of Maharashtra) - Paragraphs 3, 4, 5 and 9 ii. AIR 2015 SC 3024 (Rajeshwar Baburao Bone vs. State of Maharashtra) - Paragraphs 13 and 14

13. The learned Additional Solicitor General appearing for the

respondent, contended that the grounds raised by the appellant are

without merits and are not acceptable. There is no infirmity,

perversity in the order of the Disciplinary Authority, Appellate

Authority and Revisional Authority. After participating in the entire

enquiry proceedings, now it is not open to the appellant to raise that

the Disciplinary Authority has no jurisdiction. Learned Single Judge

has considered each and every contention of the appellant and

rejected the same by giving cogent and valid reasons. The appellant

has not made out any case to set aside the impugned order of the

learned Single Judge.

13(a). As far as verification of the genuineness of the community

certificate produced by the appellant is considered, when the

respondent came to know about the forgery and fraud, the respondent

issued charge memo and conducted domestic enquiry. The

respondent by letting in evidence by examining seven witnesses

proved that community certificate produced by the appellant is a

forged one and the appellant by playing fraud, obtained appointment.

Even though the respondent could not examine the ADM who issued

the community certificate, proved the charges levelled against the

appellant by examining the other witnesses that community certificate

produced by the appellant was forged one. The appellant did not

object to the procedure followed by the respondent at any stage and

now it is not open to the appellant to raise the issue at this stage. The

appellant obtained appointment to the post meant for Scheduled Tribe

candidates by producing forged community certificate and by fraud.

The appellant is not entitled to continue to enjoy the accrued benefit

and not entitled to protection to continue in service. The order of

dismissal is valid and prayed for dismissal of the appeal.

14. Heard the learned counsel appearing for the appellant and the

learned Additional Solicitor General appearing for the respondent and

perused the entire materials on record.

15. From the materials on record, it is seen that appellant was

appointed on 2nd June, 1997 as Constable in Railway Protection Force

of Eastern Railway under Scheduled Tribe quota. According to the

appellant, he submitted a certificate issued by the appropriate

Authority and copy of scholar's registers and the transfer certificate

form.

16. The respondent verified the said documents and being satisfied

with the genuineness of the same, appointed the appellant as

Constable. The appellant during his service of 34 years was promoted

as Head Constable, Assistant Sub-Inspector and Sub-Inspector. The

respondent, only after verifying the genuineness of community

certificate, had given the above three promotions. It is pertinent to

take note that the above contentions remain uncontroverted by the

respondent till date.

17. The respondent issued a charge-sheet dated 21st December,

2010 containing the following charges:

"CHARGE

Sri Jitendra Prasad posted at RPF Post/BWN as sub- Inspector who belongs to 'Kumri' community 'Other Backward Class' (OBC) misled and defrauded Railway administration by furnishing forged certificate of his belonging to 'Schedule Tribe' community, and fraudulently availed the benefit of reservation

under 'Schedule Tribe' category for his appointment as Rakshak in RPF.

Hence, he has violated provisions mentioned in Rule 146.6 (iv) of RPF Rules, 1987."

18. A reading of the above charges, it is seen that the allegations

against the appellant are that:

(i) He belongs to Kumri community, a OBC community.

(ii) Produced forged certificate claiming to belong to Scheduled

Tribe community and misled and defrauded Railway

administration.

19. The appellant produced in the year 1976, a community

certificate claiming to belong to Scheduled Tribe community, Kharwar

community. According to the appellant, the said community

certificate was issued by the concerned ADM having jurisdiction and

power to issue the said certificate.

20. From the charge-sheet issued to the appellant extracted above,

it is seen that the respondent has alleged that the appellant produced

"forged certificate". The Agency which has jurisdiction and power to

decide the genuineness of the Scheduled Caste and Scheduled Tribe

community certificate is no longer res integra. Starting from Kumari

Madhuri Patil and Another vs. Addl. Commissioner, Tribal

Development and Others reported in (1994) 6 SCC 241, number of

cases regarding genuineness of Scheduled Caste and Scheduled Tribe

certificates were considered and decided by the Hon'ble Apex Court

and various High Courts. All the Courts have consistently held that

only Caste Scrutiny Committee appointed by concerned State

Government have jurisdiction and power to verify the genuineness of

community certificate produced by an employee. Only persons having

thorough knowledge of the Scheduled Caste and Scheduled Tribe

communities are appointed as members of the committee. The

committee also has an Anthropologist as one of its members.

Elaborate procedure is contemplated to verify the genuineness of

community certificate. A vigilance enquiry is ordered and enquiry is

made in the locality where the employee resides and/or his native

place. The relatives of the employee are enquired and statements are

recorded. The employee is given opportunity to dispute the enquiry

report and to produce the documents especially community

certificates of his parents, brothers, sisters and close relatives. Only

after following the procedure contemplated, the Scrutiny Committee

decides based on the materials placed before it whether Scheduled

Caste/Scheduled Tribe certificate produced by the employee is

genuine or a forged one and whether the employee belongs to the

Scheduled Caste or Scheduled Tribe community as claimed by him.

The employer/employee has right to challenge the decision by way of

writ petition if aggrieved.

21. In the present case, when the certificate produced by the

appellant was alleged to be forged, the respondent ought to have

referred the issue to the Caste Scrutiny Committee. Instead, the

respondent proceeded to conduct its own enquiry on predetermined

notion that Scheduled Tribe Community certificate produced by the

appellant is forged one. Unless specialized persons and

anthropologists having knowledge of the particular Scheduled Tribe

community verified the claim of the appellant that he belongs to

Scheduled Tribe community and examined the genuineness of the

Scheduled Tribe community certificate, the said issue cannot be

decided by the employer. The seven persons examined in the domestic

enquiry are not competent persons to prove that Scheduled Tribe

community certificate produced by the appellant is forged one.

22. Further, the respondent did not examine the ADM who issued

the Scheduled Tribe community certificate to the appellant. No doubt,

true that considerable time, i.e., 34 years had lapsed and it is

doubtful whether the said ADM is in the same post or even in service.

The respondent should have examined any one of the responsible

officer from the office of the ADM to prove whether the said certificate

was issued from their office and whether Kharwar community is

Scheduled Tribe community in the districts of Deoria, Balia,

Ghazipur, Varanasi and Sonbhadra.

23. The respondent authorities have not explained why they issued

the charge memo dated 21st December, 2010. When the appellant was

appointed on 2nd June, 1977. It is unbelievable that respondent

promoted the appellant on three occasions without verifying and

without being satisfied with the genuineness of the community

certificate produced by the appellant. The charge-sheet issued to the

appellant is dated 21st December, 2010, consequent proceedings and

orders passed by the respondent authorities are invalid and without

jurisdiction. The appellant was appointed on 2nd June, 1977 in the

Scheduled Tribe reserved post on his submitting Scheduled Tribe

community certificate issued by ADM. Till the issue of charge-sheet

stated above, he did not face any problem with regard to his caste

status. Infact, he was given three promotions. When the respondent

received a complaint in the year 2010 or so that caste certificate

produced by the appellant is forged one, they ought to have referred

the issue to the Caste Scrutiny Committee to find out the genuineness

of the same. The Hon'ble Apex Court in the case of Shalini vs. New

English High School Association (supra) held in paragraph 15 as

follows:

"15. It requires specialised bodies such as Caste Scrutiny Committees, specialised lawyers, seasoned bureaucrats, etc. to decipher which category a relatively backward, or ostracised or tribal person falls in. Can it therefore seriously be contended that a person who has honestly, in contradistinction with falsely, claimed consanguinity with a certain group which was later on found not to belong to an envisaged Scheduled Tribe but to a special backward class be visited with termination of her employment? We think that that is not the intent of the law, and certainly was not what the three-Judge Bench was confronted with in Dattatray. In our opinion, therefore, the appellant should have been debarred from any further advantage that would enure to persons belonging to the "Halba" tribe."

24. The respondent instead of obtaining decision from Caste

Scrutiny Committee as held by Hon'ble Apex Court and various High

Courts ventured into deciding that the caste certificate produced by

the appellant is forged one.

25. In view of the same, we are of the opinion that respondent has

no jurisdiction and power to conduct enquiry to decide the

genuineness or otherwise of the community certificate and whether

appellant produced forged community certificate. In view of the same,

we are not deciding the other contentions of the learned counsel for

the appellant and the learned Additional Solicitor General for the

respondent.

26. For the above reasons, the orders passed by the Disciplinary

Authority, Appellate Authority and Revisional Authority and the order

of the learned Single Judge are set aside.

27. The appellant will be deemed to be in service from the date of

dismissal till date of superannuation. He is not entitled to any salary

for the said period as he was not doing any work. He is entitled to

continuity of service and the period from the date of dismissal till age

of superannuation will be treated as duty period for calculating

terminal benefits including pension.

28. With the above directions, the appeal is disposed of.

      I agree,




(Rai Chattopadhyay, J.)                            (V.M Velumani, J.)