Kerala High Court

Central Bank Of India vs State Of Kerala on 25 August, 2021

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT
                    THE HONOURABLE MR. JUSTICE A.M.BADAR
          Wednesday, the 25th day of August 2021 / 3rd Bhadra, 1943
                          WP(C) NO. 5918 OF 2021(L)
PETITIONER:

     CENTRAL BANK OF INDIA, CHANDER MUKHI,NARIMAN POINT,
     MUMBAI-21,MNAHARASHTRA,REPRESENTED BY ITS SENIOR REGIONAL
     MANAGER,REGIONAL OFFICE,1ST FLOOR,METRO PLAZA, ERNAKULAM
     NORTH,KOCHI-682018.

RESPONDENTS:

  1. STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO
     GOVERNMENT,SCHEDULED CASTE/SCHEDULED TRIBE DEVELOPMENT DEPARTMENT,
     SECRETARIAT,THIRUVANANTHAPURAM-695001.
  2. THE SCRUTINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATES,
     REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT,SCHEDULED
     CASTE/SCHEDULED TRIBE DVELOPMENT DEPARTMENT,GOVERNMENT OF KERALA,
     SECRETARIAT,THIRUVANANTHAPURAM-695001.
  3. G.RAVEENDRAN, UTHRADOM,72,GANDHI NAGAR,ASRAMAM NORTH,KOLLAM-691002.
  4. THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT,1972,
     AND ASSISTANT LABOUR COMMISSIONER(CENTRAL),ERNAKULAM,
     KAKKANAD,KOCHI-682030.

     Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to stay all further proceedings pursuant to Exhibit.P5 order
passed by the 4th respondent, pending disposal of the writ petition.

     This petition again coming on for admission upon perusing the
petition and the affidavit filed in support of WP(C) and upon hearing the
arguments of M/S. K.T.THOMAS, MATHEW B. KURIAN, .N.SUNIL & NIKHIL BERNY
Advocates for the petitioner,GOVERNMENT PLEADER for respondents 1 & 2 and
of SRI.N.SUKUMARAN (SENIOR ADVOCATE) along with M/S. S.SHYAM, N.K.KARNIS,
V.K.BALACHANDRAN & VINAY KUMAR VARMA, Advocates for respondent 3, the
court passed the following:-
                                                       P.T.O.




     EXT.P5. TRUE COPY OF THE ORDER DATED 20-03-2020 IN GRATUITY CASE
NO.48/38/2017 PASSED BY                 THE CONTROLLING AUTHORITY.
                             A.M. BADAR, J
                    -------------------------------------
                       W.P.(C) No.5918 of 2021
                                     &
             I.A.No.1 of 2021 in W.P.(C) No.5918 of 2021
                    -------------------------------------
                 Dated this the 25th day of August, 2021

                               ORDER

W.P.(C) No.5918 of 2021 Heard both sides.

2. The learned counsel for the petitioner submits that the 3 rd

respondent joined services of the petitioner in a vacancy meant for a

candidate belonging to the scheduled tribe. Subsequently on complaint,

the District Collector upon enquiry, cancelled the community certificate

of the 3rd respondent declaring to be belonging to the scheduled tribe.

The order of the District Collector was challenged by filing the original

petition before this Court. But in the light of enactment of the Kerala

(Scheduled Castes and Scheduled Tribes) Regulation of Issue of

Community Certificates Act, 1996, the petition was disposed of with a

direction to approach the Scrutiny Committee. Ultimately, the Scrutiny

Committee for verification of community certificate was pleased to W.P.(C).No. 5918 of 2021

cancel all scheduled tribe certificates already issued to the 3rd

respondent as well as his sibling and children.

3. The 3rd respondent preferred an appeal challenging that

order which is still pending before this Court. The 3 rd respondent

undisputedly retired from services of the petitioner on 30-11-2013.

The learned counsel for the petitioner further argued that the 3 rd

respondent has preferred W.P.(C) No.8594/2016 for release of

pensionery benefits, which is still pending before this Court.

However, during pendency of the said writ petition, the 3 rd respondent

approached the Controlling Authority under the Payment of Gratuity

Act for release of gratuity and by Exhibit P5, the impugned order

dated 20-03-2020, the learned Controlling Authority directed release

of gratuity to the 3rd respondent.

4. The learned counsel appearing for the petitioner relied on

judgment of the Hon'ble Apex Court in the matter of Chairman and

Managing Director, FCI and Ors. v. Jagdish Balaram Bahira and

Ors. reported in AIR 2017 SC 3271 as well as that of this Court in the

matter of the Managing Director, State Bank of Travancore v.

Viswanathan K.G. and Ors. reported in 2016 KHC 569. W.P.(C).No. 5918 of 2021

5. The learned counsel appearing for the 3rd respondent press

the I.A.No.1/2021 for vacation of the interim stay and contended that

what is sought by the 3rd respondent before the Controlling Authority

was his dues to which he became entitled because of long service

rendered to the petitioner. The learned counsel for the 3 rd respondent

argued that the 3rd respondent grew up as the member of the scheduled

tribe and there are no allegations of fraud. It is further contended that

the 3rd respondent himself is a victim of cancellation of his tribal

claim. It is further urged that the gratuity is the part of pensionery

benefit. By relying on judgment of this Court in the matter of K.N.

Haridasan v. State Bank of Travancore and Ors. in W.P.(C)

No.22711 of 2016 decided on 23-03-2017, the learned counsel for the

3rd respondent submits that gratuity is the payment for past service

rendered by the 3rd respondent. It is not a future benefit, but is

deferred composition for past service rendered by the 3rd respondent.

It is also contended that the Payment of Gratuity Act and more

particularly Sub Section 6 of Section 4 provides on contingencies in

which the gratuity can be forfeited. The case of the 3 rd respondent is

not covered by those contingencies and therefore no error can be found W.P.(C).No. 5918 of 2021

in the impugned order.

5. I have considered the submissions so advanced. In the

matter of Chairman and Managing Director, FCI and Ors. (Supra),

following is the law laid by the Hon'ble Supreme Court as found in

clause 3 and clause 7 of paragraph No.57. These clauses read thus:

"(iii) The decisions of this Court in R.Vishwanatha

Pillai (AIR 2004 SC 1469) and in Dattatray (AIR 2008 SC

1678) which were rendered by Benches of three Judges laid

down the principle of law that where a benefit is secured by

an individual - such as an appointment to a post or

admission to an educational institution - on the basis that

the candidate belongs to a reserved category for which the

benefit is reserved, the invalidation of the caste or tribe

claim upon verification would result in the appointment or,

as the case may be, the admission being rendered void or

non est.

(vii) withdrawal of benefits secured on the basis of a

caste claim which has been found to be false and is

invalidated is a necessary consequence which flows from W.P.(C).No. 5918 of 2021

the invalidation of the caste claim and no issue of

retrospectivity would arise;"

6. Similarly, in the matter of the State Bank of Travancore

v. Viswanathan K.G. and Ors.(Supra), the learned Division Bench

of this Court has held that it is not necessary to prove the fraud and it

is enough that the community certificate issued in support of the

scheduled tribe claim of the individual is not genuine.

7. To my mind it is clear that the petitioner has established a

primafacie case. Unless and until the 3 rd respondent is held to be a

candidate belonging to the scheduled tribe, he cannot be said to be

entitled for the benefits reserved for that post. Primafacie he cannot be

said to be an occupier of the civil post which was meant for the

scheduled tribe. The 3rd respondent relied on the judgment of the

learned Single Judge of this Court in the matter of K.N. Haridasan v.