Orissa High Court
(Through Hybrid Mode) vs State Of Odisha And Others on 18 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.11807 of 2012
(Through Hybrid mode)
Asit Kumar Nayak .... Petitioner
Mr. Susanta Kumar Mishra, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. Y.S.P. Babu, AGA
Mr. Prasanna Kumar Parhi, DSG
Mr. Debabrata Rath, CGC
CORAM: JUSTICE ARINDAM SINHA
JUDGMENT
18.11.2022
1. Mr. Mishra, learned advocate appears on behalf of petitioner
and submits, his client belongs to scheduled tribe 'Gondo'. He has
challenged final order dated 20th June, 2012, of the State Level
Scrutiny Committee, passed in fake caste certificate case (FCC no.21
of 2011). He submits, the Investigating Officer (IO) did not afford his
client opportunity in the purported investigation conducted. His client
had earlier moved a Division Bench of this Court by W.P.(C) no.2003
of 2012, which was disposed of on order dated 8th February, 2012.
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There was direction for his client to have fair and reasonable
opportunity of hearing and allow him to furnish the documents, if
any.
2. He draws attention to report dated 11th November, 2011 of the
IO, on the investigation made without participation of his client. He
points out from findings in impugned final order that when his client
produced photocopy of the admission register relating to, inter alia, his
father, the committee said they had perused the original admission
register and found that caste entry on admission of his father had been
tampered with by overwriting and made 'Gondo'. Hence, the
document could not be relied upon and was not taken into
consideration. He submits, there is no mention in report of the IO that
school admission record regarding his client's father had been
tampered. He relies on judgment of the Supreme Court in Sayanna vs.
State of Maharashtra, reported in (2009) 10 SCC 268, paragraph 14.
He submits, impugned final order be quashed.
3. Mr. Babu, learned advocate, Additional Government
Advocate appears on behalf of State and relies on paragraphs 10, 11
and 12 in the counter. He submits, it will appear therefrom that
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petitioner was given opportunity to appear in the investigation but, he
did not. The committee complied with directions made in aforesaid
order of the Division Bench, by supplying copies of documents
attached to the report of the IO, to petitioner. His show-cause was
perused and he was given personal hearing. Steps were duly taken in
the matter as per observations of the Supreme Court in Madhuri
Patil v. Addl. Commr., Tribal Development, reported in AIR 1995
SC 94. Impugned final order was made. It has clear findings. In the
circumstances, there should not be interference by judicial review.
4. Court has perused report of the IO, made before aforesaid
direction of the Division Bench, to allow, inter alia, fair opportunity to
petitioner. It appears from the report that admission record of elder
brother of petitioner, admitted to the school on 16th July, 1970, was
verified by the IO and on requisition made, the Head Master had
opined that the caste of petitioner's said brother is 'Guna' in general
category. Several khatas in the RoR were also verified by the IO. Of
them, except khata no.796, all were joint. Khata no.796 stands in
name of father of petitioner, where the caste is written as 'Gondo'.
Relevant paragraph from the report is reproduced below.
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"On verification Khata No.796 of G. Udayagiri mouza
stand in the name of Sridhar Nayak, S/o. Surendra Nayak
of G. Udayagiri in which the caste is written as "Ganda"."
The IO remarked that such was proof of the record having been
managed by any means.
5. Impugned final order says that the committee gave
opportunity to petitioner and he appeared before it on three days. As
aforesaid, petitioner produced photocopy of the school admission
register in respect of his father's admission. Mr. Mishra hands up the
photocopy, as obtained on requisition dated 2nd March, 2012 under
Right to Information Act, 2005. The photocopy of the admission
register page, showing some admissions made in June and July, 1944,
was forwarded under cover of letter dated 3rd March, 2012 by the
Head Master, Hubback High School, G. Udayagiri, Kandhamal. This
was noted in impugned final order. It appears, the committee itself
called for the original register and on perusal thereof found
tampering, as aforesaid. Such tampering is not obvious in the
photocopy. Also, there is no reference to admission of petitioner
himself, as verified in the investigation or in impugned final order.
Furthermore, khata no.796, referred to by the IO in his report, was
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neither mentioned and therefore not dealt with in impugned final
order. All this was pointed out to Mr. Babu.
6. Further query was made to Mr. Babu regarding restrictions
regarding transfer of land, placed on owners belonging to scheduled
tribes. Section 22 in Odisha Land Reforms Act, 1960 bars transfer to
a person not belonging, except when made with prior written
permission of the Revenue Officer. The witnesses were examined in
the investigation behind the back of petitioner, causing interference
by the Division Bench, as aforesaid. Hence, where the relative of
petitioner had dealt with his land, in describing himself to belong to a
caste in general category, the testimony of such and the purchaser
witnesses, in absence of petitioner having had opportunity to confront
them, becomes unreliable.
7. Mr. Parhi, learned advocate, Deputy Solicitor General and Mr.
Rath, learned advocate, Central Government Counsel appear on behalf
of Union of India.
8. In Madhuri Patil (supra) the Supreme Court streamlined
procedure for issuance of social status certificates. The guidelines are
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given in paragraph 12 of the judgment. Guideline (5) is in respect of
verification and collection of all the facts of social status claimed by
the candidate or the parent or guardian, as the case may be. A passage
from the guideline is extracted and reproduced below.
"He also should examine the school records, birth
registration, if any. He should also examine the parent,
guardian or the candidate in relation to their caste etc. or
such other persons who have knowledge of the social
status of the candidate and then submit a report to the
Directorate together with all particulars as envisaged in
the pro forma, in particular, of the Scheduled Tribes
relating to their peculiar anthropological and ethnological
traits, deity, rituals, customs, mode of marriage, death
ceremonies, method of burial of dead bodies etc. by the
concerned castes or tribes or tribal communities etc."
(emphasis supplied)
Guideline (6) is on contingency of report from the Vigilance Officer
finding the claim for social status to be 'not genuine' or 'doubtful' or
spurious or falsely or wrongly claimed. Guideline (7) says, incase,
inter alia, particulars given are procured or found to be false or
fraudulently obtained, procedure envisaged in guideline (6), is to be
followed.
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9. Regarding Court's appreciation in respect of the investigation
report and findings in impugned final order, as stated in paragraphs 4
to 6 above, State has no answer. Photocopy, of the document made in
year 1944, was supplied in year 2012, upon requisition made under
the Act of 2005. The photocopy is, therefore, accepted to be a true
copy of the original. The committee felt necessity for looking at the
original. It was not said in impugned final order, to have been shown
to petitioner. It is not understood, why this document was missed by
the IO in his investigation, when verifying the school admission
register, to find only, admission particulars of petitioner's elder
brother.
10. Paragraph 14 from Sayanna (supra) is reproduced below.
"It is difficult for this Court to understand as to on which
basis the Scrutiny Committee came to the conclusion that
the word "lu" was interpolated in the register of the school
more particularly when it was not so opined by the Police
Inspector who had conducted the enquiry. Whether
interpolation by addition has taken place can be stated by a
handwriting expert or by comparison of admitted letters of
a person with this disputed one. It is an admitted position
that the Scrutiny Committee had never attempted to get an
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expert's opinion nor itself had compared the disputed
letters with admitted one of the appellant."
The committee formed opinion, by itself, on simply perusing original
admission register of year 1944. There ought to have been an
allegation before the committee, for it to evaluate the evidence in
relation to the allegation.
11. Section 7(1) in Odisha Scheduled Castes, Scheduled Tribes
and Backward Classes (Regulation of Issuance and Verification of
Caste Certificates) Act, 2011 says, when it comes to notice that a
person not belonging to any of the reserved category has obtained a
false caste certificate, the committee may suo motu or otherwise, call
for the record and enquire into the correctness of such certificate. There
is no mention in impugned final report that this document was initially
also produced by petitioner and erroneously relied upon, for issuance
of the certificate. Where the law requires inquiry, to establish that a
caste certificate obtained is fake, there should not have been
pronouncement by the committee, without inquiry, that a document
made in year 1944 and not part of the record, had been tampered with,
to say it cannot be relied upon and disregard it.
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12. Reason (5) from impugned order is reproduced below.
"5. It is found from the statements of the alleged before
the SLSC on 28.2.12 that the alleged has no idea about the
Gonda caste and has no knowledge about the tribal
language of the Gond people. He is also unable to speak
about the profession and festival etc. of the Gond people.
From the said statement of the alleged it is ascertained that
the alleged does not belong to Gond caste as he is unaware
of the socio cultural life styles and traits of the Gond
people."
This reason is not based on guideline (5) in Madhuri Patil (supra). In
said guideline, as appears from passage therefrom reproduced above,
there is requirement for examination of such other persons, who have
knowledge of the social status of the candidate. Impugned final order
does not say any such person was examined. As such, Court is unable
to fathom basis for said reason that petitioner has no idea about
'Gondo' caste or has no knowledge about the tribal language of the
'Gondo' people etc.
13. Paragraph 14 from Madhuri Patil (supra) is reproduced
below.
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"14. The question then is whether the approach adopted by
the High Court in not elaborately considering the case is
vitiated by an error of law. High Court is not a court of
appeal to appreciate the evidence. The Committee which is
empowered to evaluate the evidence placed before it when
records a finding of fact, it ought to prevail unless found
vitiated by judicial review of any High Court subject to
limitations of interference with findings of fact. The
Committee when considers all the material facts and
records a finding, though another view, as a court of
appeal may be possible, it is not a ground to reverse the
findings. The court has to see whether the Committee
considered all the relevant material placed before it or has
not applied its mind to relevant facts which have led the
Committee ultimately recorded the finding. Each case
must be considered in the backdrop of its own facts."
(emphasis supplied)
A much later document is the RoR khata no.796, verified by the IO
but overlooked by the committee. Therein, father of petitioner had
asserted his identity as belonging to scheduled tribe 'Gondo', in
having had got the land so recorded. The bar on transfer became
applicable. Position taken regarding father of petitioner, in year 1944
on him getting admission and thereafter by himself in recording his
caste 'Gondo' in the RoR khata, is consistent. These were good direct
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evidence before the committee. The otherwise finding, therefore, is
perverse.
14. Mr. Mishra submits, though his client had obtained interim
order dated 18th July, 2012 but, by reason of long pendency of the
writ petition and direction of the Supreme Court in Asian
Resurfacing of Road Agency (P) Ltd. v. CBI, reported in (2018) 16
SCC 299, same was deemed vacated. His client's employer
proceeded and passed order dated 12th August, 2020, removing his
client from railway service with immediate effect saying, service thus
far rendered, was infructuous. He submits further, the writ petition
was thereafter amended at his client's instance, bringing additional
prayer. Mr. Babu submits, consolidated writ petition is not available
in the record, nor copy was served. To prevent exactly this, the
Supreme Court also in Madhuri Patil (supra) said in guidelines (11),
(12) and (13) as reproduced below.
"11. The order passed by the Committee shall be final and
conclusive only subject to the proceedings under Article
226 of the Constitution.
12. No suit or other proceedings before any other
authority should lie.
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13. The High Court would dispose of these cases as
expeditiously as possible within a period of three months.
In case, as per its procedure, the writ
petition/Miscellaneous petition/matter is disposed of by a
single Judge, then no further appeal would lie against that
order to the Division Bench but subject to special leave
under Article 136."
15. Impugned final order is set aside and quashed. Since, the
termination was solely on basis of impugned final order, herein
quashed, petitioner will approach his employer with this order, for
immediate reinstatement on continuity of service. Union of India
(Railways) is obliged to expeditiously deal with the approach.
16. The writ petition is disposed of.
(Arindam Sinha)
Judge
Prasant
