(Through Hybrid Mode) vs State Of Odisha And Others
2023 Latest Caselaw 1716 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                         WP(C) No.6643 of 2019
                         (Through Hybrid mode)
Malati Kanhar                                   ....                        Petitioner

                                            Ms. Saswati Mohapatra, Advocate

                                      -versus-
State of Odisha and others                      ....                Opposite Parties

                                                  Ms. Suman Pattanayak, AGA


             CORAM: JUSTICE ARINDAM SINHA

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Date of hearing and Judgment 23.02.2023

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1. Ms. Mohapatra, learned advocate appears on behalf of

petitioner. She submits, her client belongs to a Scheduled Tribe. She

obtained job by reservation and was working as night watchwoman.

On purporting to act on complaint, the State Level Scrutiny

Committee initiated a fake caste certificate case, since re-numbered as

FCC no.482 of 2010. She submits, her client got married and in her

society, the daughter-in-law accepts the father-in-law to be her father.

Accordingly she stated her father-in-law's name against entry 'father'

in her employer's records. Her biological father's name is Upendra

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Kumar Pradhan. She demonstrates, this was brought to notice of the

committee, as admitted in paragraph 4 of additional counter dated 15th

December, 2022.

2. There was no enquiry made regarding her client's assertion of

the person being her biological father. Instead some persons were

taken to be witnesses, for establishing that one Jaleswar Digal was her

client's father. Impugned final order dated 30th October, 2018 is not

based on relevant evidence. It is perverse and should be set aside and

quashed.

3. Ms. Pattanayak, learned advocate, Additional Government

Advocate appears on behalf of State. She submits, thorough enquiry

was made. Petitioner, in spite of several notices commencing from

year, 2016 and served, failed to present herself before the committee.

The case was ultimately taken up on 30th May, 2018, when several

persons were present and deposed jointly to say that petitioner is

daughter of Jaleswar Digal, resident of village - Bapalmendi under

Chakapad Tahsil, Pana by caste and Hindu by religion. She submits,

petitioner got married to one Kartik Konhar @ Digal, s/o- Alika

Konhar @ Digal at G.Udayagiri and changed her caste to Kandha ST.

// 3 //

This she did by obtaining caste certificate claiming to be daughter-in-

law of Alika Konhar, her father-in-law. Subsequent thereto there was

proclamation but no objection was received. She submits, the

committee duly acted and, therefore, there should not be interference.

4. There is ongoing litigation before this Bench regarding, inter

alia, Orissa Caste Certificate (for Scheduled Castes and Scheduled

Tribes) Rules, 1980 holding the field to exclusion of directions made

by the Supreme Court in Madhuri Patil v. Addl. Commr., Tribal

Development, reported in AIR 1995 SC 94. Be that as it may,

impugned final order dated 30th October, 2018 is under challenge. The

challenge has come up for adjudication on judicial review. Impugned

final order relies on enquiry report of the Investigating Officer (IO).

The report is not on record even though State has filed counter as well

as additional counter. The writ petition was presented on 25th March,

2019 and impugns the final order, which took more than 8 years in the

making. In the circumstances, where petitioner has not challenged

jurisdiction of the committee, adjudication cannot be kept pended

awaiting decision on other pending litigation.

// 4 //

5. The final order though relies on the enquiry report, it does

mention that pursuant to it, the committee decided to obtain further

report from Tahsildar Chakapad regarding, inter alia, whereabouts of

Jaleswar Digal and his kith and kin. Accordingly, there were

prosecution witnesses examined by the committee.

6. At this stage Ms. Pattanaik, who has managed to obtain the

enquiry report in the meantime, hands it up. Perused the report. Two

paragraphs from the report are reproduced below.

"During enquiry I examined SC & ST people of Baridisahi and Sankarakhol under Tikabali P.S., examined Sarapanch Joseph Mallick, Banabashi Digal, Rajib Digal, Petu Konhar, Sukru Konhar to ascertain the veracity of allegation.

The enquiry revels that Malati Konhar @ Digal is the wife of Kartika Digal, Daughter in-law of Alika Digal of village Baridisahi, P.S. Tikabali. She is now working as Chawkidar/night Watcher in the office of Executive Engineer, PHD-III Division, Shaidnagar, Bhubaneswar. She has been allegedly appointed in the said post under ST category changing her original caste Pana to Kandha. She is actually the daughter of Jaleswar Digal of village Bapalmendi under Tikabali PS. Who is Pana Christian by caste. It is further ascertained that said Malati Konhar has changed her

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title from Digal to Konhar and indicated as the daughter of Alika Digal and brought the caste certificate from the Tahasil office G.Udayagiri in a fraudently and enrolled in Government service under ST category. Actually she is Pana by caste and Hindu in religion if she will compared both her father and in-law side. The genealogy of her is she is the daughter in-law of Alika Digal, S/o Tambira Digal. She has also three father in- laws like Babula, Banabashi and Suta Digal, out of them Babula and Banabashi has already been converted from Hindu to Christian and they are now Pana Christian, but Suta Digal and her father in-law are still continuing in Hindu religion and they are originally Pana by caste. Malati Konhar and her father in-law has left this village since long and are staying at their work place at Bhubaneswar. Her husband Kartika Konhar has been employed in the State guest house as the ward boy, he is now under suspension on the allegation of forging his caste certificate. Malati Konhar is having three children, two daughter and one son and staying in Unit- III, Malisahi, Bhubaneswar. She has not visited her native village since long."

(emphasis supplied)

7. It is clear that the enquiry was made on omission to examine,

most significantly, Jaleswar Digal. There is no mention in the report

of reason for the omission. There are contradictions in the report

inasmuch as Jaleswar Digal is said to be Pana Christian by caste but

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petitioner thereafter said to be Pana by caste and Hindu in religion, if

she will be compared both father and in-law side. Religion of the

father-in-law is said to be still continuing in Hindu religion and

originally Pana by caste. The enquiry report also says that the

husband is under suspension from his employer on allegation of

forging his caste certificate. This, when social status is determined on

paternity.

8. Prosecution witnesses examined, are all who have said

something about others. Those others being, inter alia, Jaleswar Digal,

Alika Konhar @ Digal and Kartika Konhar @ Digal, were not

examined. As aforesaid there is no mention regarding the omission to

do so. Upon perusal of the enquiry report and impugned final order, it

is clear the latter has simply relied upon the former without any

attempt to verify the report on its evidentiary value, in adjudication of

the case. There is another glaring omission. Petitioner had informed

the committee that her father was one Upendra Pradhan. That person

has not been noticed, neither in the enquiry nor by the committee. In

the circumstances, it matters little that petitioner did not present

herself before the committee. Prosecution case is to be proved, if not,

// 7 //

at least to extent of preponderance of probabilities, the adjudication

not being a criminal trial in a Court of Session.

9. Consequences of impugned final order are severe on

petitioner. In the circumstances, Court has endeavoured to see that the

adjudication by the committee, resulted in the final order, can be said

to have been made in accordance with law. It does appear that

impugned order is not based on relevant evidence but entirely upon

the enquiry report and joint statement of other persons alleging that

petitioner is daughter of Jaleswar Digal. It cannot said to be a

reasonable or possible view. The report also says that petitioner is

daughter of Jalandhar Digal, as appearing from school admission

register of Bapalmendi, UGME school. In the premises, finding that

impugned final order is not based on relevant evidence is inevitable.

Impugned final order is found to be perverse and is set aside and

quashed.

10. The writ petition is allowed and disposed of.

(Arindam Sinha) Judge Prasant