Gurusamy R. vs District Collector and Others

Sathasivam, J.—Aggrieved by the proceedings of the first respondent dated February 19, 1991, the petitioner has filed the above writ

petition for quashing the said order on various grounds.

The case of the petitioner is briefly stated hereunder:- According to him, he belongs to Konda Reddy community which is one of the

communities listed as Scheduled Tribe under Constitution (Scheduled Tribes) Order, 1950. The third respondent called for applications for the

post of Electrical Kalasi in the year 1981. He applied to the said post under the quota reserved for Scheduled Tribes. He was selected in the

interview, during which time, he had produced a community certificate dated January 9,1980 issued by the Tahsildar, Avinashi. The third

respondent accepted the community certificate dated January 9, 1980 and appointed him as Electrical Kalasi with effect from December 23,

1981. Subsequently he was promoted and at the time of filing of the writ petition he was employed as Electrical Fitter Grade-I. While so, it would

appear that one of his co-workers by name Vellaiyan forwarded a false complaint against his community status, who is on inimical terms with him.

Pursuant to the said complaint, a verification seems to have been caused through the first respondent. The second respondent throught his Memo

dated April 27, 1989 had called upon him to appear for an enquiry on May 6, 1989. Accordingly, he appeared in the said enquiry and produced

copies of the three community certificates issued by the Thasildar, Avinasi Taluk. A statement was also recorded in the office of the 2nd

respondent. After this enquiry, the first respondent suddenly by letter dated May 12, 1990, called upon him to show cause as to why the

community certificate issued in his favour should not be cancelled. He submitted his explanation on September 10, 1990 and also produced ancient

documents in order to substantitate his claim. Even though the first respondent forwarded a copy of the report of the 2nd respondent, he has not

furnished the entire materials gathered by the 2nd respondent so as to give a satisfactory reply. Thereafter, as requested, he appeared on

December 12, 1990 and produced some more valuable documents. However, by proceedings dated February 19, 1991 the first respondent

ordered to cancel the community certificate issued in his favour. In such circumstance, having no other remedy, he has approached this Court by

way of the present writ petition.

The first respondent has filed a counter affidavit disputing various averments made by the petitioner. It is stated that the petitioner is a native of

Pasur village of Avinashi Taluk of Coimbatore District. He belongs to Hindu-Reddy community, recognised as Forward Class. He got a

community certificate from the Tahsildar, Avinashi as ''Hindu-Konda Reddy'' on January 9, 1980 by producing some false evidences. He got

appointment as Electrical Kalasi in the Office of the Southern Railway Region and he is in service from December 23, 1981. He was selected on

the seats reserved for Schedule Tribes. One Vellaiyan, who is the co-worker of the same Office made a petition to Collector, Coimbatore, stating

that the petitioner does not belong to Konda Reddy and the petition made on December 23, 1987 was sent to the Revenue Divisional Officer,

Tiruppur, with a request to make an enquiry and send a report regarding the genuineness of the community certificate. The petitioner was enquired

by the Revenue Divisional Officer, Tiruppur on March 6, 1989. Then the Revenue Divisional Officer, Tiruppur made local enquiry in the village and

sent a report to the Collector, Coimbatore. Based on the report of the Revenue Divisional Officer, the Collector in his proceedings dated June 12,

1980 has issued a show-cause notice to the petitioner stating that why the community certificate issued to him by the Tahsildar, Avinashi should not

be cancelled. As requested, the report of the Revenue Divisional Officer, Tiruppur and copy of the petition the said Vellaiyan along with the copies

of documents were sent to the petitioner. In obedience to the notice issued by the Collector, the petitioner appeared in Collector''s Office.

Coimbatore on December 12, 1990 and gave explanation with some evidences. After considering all the materials, the Collector by the impugned

order, cancelled the community certificate issued to him. In as much as the petitioner was given adequate opportunity during the enquiry by the

Revenue Divisional Officer and was also given further opportunity before the District Collector before passing final order, there is no merit in the

writ petition, accordingly the first respondent prayed for dismissal of the same.

In the light of the above pleadings, I have heard the learned counsel for the petitioner as well as respondents.

Mr. N. Kannadasan, learned counsel for the petitioner, after taking me through the entire proceedings, materials placed by the petitioner before

the Revenue Divisional Officer and the District Collector, has raised the following contentions:-

i) The first respondent failed to consider the 3 important documents out of which two are ancient sent along with his representation dated

September 10, 1990.

ii) Rejection of other documents by showing flimsy grounds cannot be accepted;

iii) The local enquiry/discreet enquiry conducted by the Revenue Divisional Officer is opposed to principles of natural justice. Petitioner was not

given any opportunity in the enquiry conducted by the Revenue Divisional Officer; and

iv) Respondents 1 and 2 committed an error in conducting enquiry merely on the basis of complaint made by one Vellaiyan, a co-worker without

any specific request from his employer.

On the other hand, learned Government Advocate after taking me through the various averments in the counter affidavit has contended that both

the enquiry officer, namely, Revenue Divisional Officer and the ultimate authority, namely, District Collector after analysing the documents

produced by the petitioner in the absence of any acceptable material, after rejecting the same, cancelled the community certificate issued by the

Tahsildar, Avinashi. He also submitted that even though discreet enquiry was conducted by the Revenue Divisional Officer, a copy of the report of

the Revenue Divisional Officer has been furnished to the petitioner before passing final order by the first respondent, accordingly there is no error

of law or procedure in the order impugned.

I have carefully considered the rival submissions.

Admittedly, respondents 3 and 4, namely, the employer of the petitioner at no point of time prayed for any enquiry or requested the respondents

1 and 2 for verification as to the genuineness of the community certificate dated January 9, 1980 issued by the Tahsildar, Avinashi and produced

by the petitioner. On the basis of the community certificate dated January 9, 1980 issued by the Tahsildar, Avinashi, the petitioner was selected

and appointed for the post of Electrical Kalasi in the year 1981 by the third respondent. It is also stated by the petitioner that he was promoted

and at the time of filing of the writ petition, he was working as Electrical Fitter-Grade-I. However, one Vellaiyan, one of his co-workers,

forwarded a complaint against his community status to the first respondent. It is the definite case of the petitioner that the said Vellaiyan is on

inimical terms with him. Pursuant to the said complaint, a verification seems to have been caused by the first respondent through the second

respondent. I shall consider whether it is open to the Revenue authorities to verify and enquire merely on the basis of complaint at the instance of a

third party when the employer has no grievance at the latter part of my order. Presently I shall consider the merits of the impugned order passed by

the first respondent.

As directed by the first respondent, the 2nd respondent-Revenue Divisional Officer, Tiruppur, called upon the petitioner for an enquiry on

March 6, 1989. According to the petitioner, he appeared in the enquiry and produced copies of 3 community certificates issued by Tahsildar,

Avinashi. Even though the 2nd respondent enquired the petitioner, he had also enquired other persons with regard to the community status of the

petitioner. On receipt of the report from the Revenue Divisional Officer, the first respondent issued a show cause notice to the petitioner for

production of relevant documents in order to substantiate his claim. It is seen that even on September 10, 1990, the petitioner while forwarding a

representation to the first respondent has also enclosed 3 documents. Out of the said documents, one is a registered document of the year 1897.

The said document was registered in the office of the Sub Registrar, Avinashi as 1225 and according to him, it is the document of his fore-fathers

wherein it is specifically mentioned that they belong to Konda Reddy community. The other document is a Sale-deed dated September 11, 1948

executed by one Rajagopal Reddy. According to the petitioner, the said Rajagopal Reddy is the ""Sammandhi"" of one Duraisamy Reddy,

Nagammapudur, Annur village, Avinashi taluk. The said Duraisamy Reddy is the uncle of the petitioner. The third document is dated October 27,

1966 which was executed by one Srinivasa Reddy, who is the brother-in-law of the said Duraisamy Reddy. It is the definite contention of the

learned counsel for the petitioner that all the three documents have been enclosed along with the representation even on September 10, 1990 to

the District Collector, Coimbatore in pursuance of his show cause notice dated May 12, 1990. None of these documents have been considered by

the first respondent. The perusal of the impugned order supports the first submission of the learned counsel for the petitioner. In other words, for

the reasons best known to the first respondent, he did not consider all the above referred documents which were sent by the petitioner even on

September 10, 1990. The non-consideration of relevant documents undoubtedly vitiates the ultimate order passed by the authority.

During the enquiry, the first respondent has considered four documents produced by the petitioner and rejected the same as unacceptable. The

first document is the Census Report of the year 1981. The reason given by the first respondent is that the persons who have secured false

community certificate to safeguard their interest furnished wrong information during the Census which took place in 1981. The said reason cannot

be accepted. It may be desirable to say that the said document may not be a sufficient piece of evidence to substantitate the claim of the petitioner,

instead to reject the contents of 1981 Census only on the ground that those informations were furnished to safeguard the false community

certificate is unacceptable and first respondent is not justified in saying so.

Regarding the school certificate of P.R. Rangasamy Reddy, the first respondent has rejected the same on the ground that the relationship of

P.R. Rangasamy Reddy and R. Gurusamy has not been proved. In this regard, the learned counsel for the petitioner has brought to my notice the

sworn statement of R. Gurusamy before the District Collector on December 12, 1990 wherein he has stated as follows:-

While rejecting the school certificate of P.R. Rangasamy Reddy the first respondent failed to consider the above mentioned statement.

Likewise the reason given by the first respondent for rejection of sale document No. 1087 dated May 24, 1977 is unacceptable. Likewise

with regard to the rejection of application of Rangasamy, son of perumal Reddy dated December 18, 1990 the very same person, namely, P.

Rangaswamy gave a statement before the District Collector, Coimbatore. A perusal of the said petition shows that the District Collector,

Coimbatore himself had sanctioned stipend since P. Rangasamy belongs to Konda Reddy Community. Further, the following particulars furnished

in the statement of P. Rangasamy before the District Collector also supports the claim of the petitioner which reads as follows:-

In the light of the said position, the reason given by the first respondent cannot at all be accepted. Accordingly, I hold that the reasons given by him

for rejecting the four documents while passing orders on February 19, 1991 are unacceptable and baseless.

Regarding the other contention relating to local enquiry-discreet enquiry by the Revenue Divisional Officer, even though it is stated that the

petitioner was enquired by the Revenue Divisional Officer, it is seen that he had conducted the discreet enquiry from various persons behind the

back of the petitioner. No doubt, learned Government Advocate has brought to my notice that the copy of the report of the Revenue Divisional

Officer based on such enquiry has been furnished to the petitioner by the first respondent before passing the impugned order. Mere furnishing copy

of the report would not comply with the principles of natural justice. In State of Andhra Pradesh and others Vs. Nagam Chandrasekhara Lingam

and others, the conclusion arrived at by Their Lordships is relevant which is extracted hereunder:-

In our view, the Appeals can be disposed of on a short point. It is evident from the aforesaid Order, G.O.Ms. 51 dated March 20, 1984 that

in the course of the enquiry, the Commissioner of Welfare, Social Welfare Department, went into the social and economic status of

Chandrasekhra, his parents and other members of his family and the question whether they were regarded as untouchables by the caste Hindus of

the area. The Commissioner of Social Welfare examined exhaustively the question whether any disability or untoucliability was suffered by

Chandrasekhra and members of his family and by others belonging to the Jangam community in the district ''concerned. The Commissioner came

to the conclusion that Beda Jangamas properly called were hunters of small jungle animals, fowlers and also cultivators whereas Jangamas in the

area concerned did not suffer from any social disability at all but were regarded as a part of the comparatively advanced classes. What is material

is that this order itself shows that the Enquiry Officer made enquiries from several persons and recorded their statements without any notice to

Chandrasekhra so that he could remain present and ask for permission to cross-examine these witnesses. In view of this, it appears to us that the

Commissioner clearly violated the terms of the enquiry which have already been set out earlier to the effect that while conducting the proceedings

of the enquiry, the Enquiry Officer should give notice to Chandrasekhra and should record the statements of persons in his presence. It may further

be pointed out that the learned counsel for the Central Government fairly conceded before the High Court that the enquiry conducted was not fair

and proper, as set out in the impugned judgment. In this view of the matter there is no doubt that the aforesaid Order, namely, G.O.Ms.51 dated

March 20, 1984 is clearly vitiated and the Division Bench of the High Court of Andhra Pradesh was fully justified in setting aside the Order.

Admittedly in our case, the Revenue Divisional Officer enquired several persons and recorded their statements without any notice to the petitioner.

In the light of the decision of the Apex Court, the procedure followed by the Revenue Divisional Officer in recording the statements of several

persons without notice to the person concerned was not fair and proper.

In the case of C. Baskaran v. The District Collector, Trichy 1997 W L.R.33 a Division Bench of this Court has held that discreet enquiry itself

is bad and even if it is held the copies of the statements recorded and the copies of the documents collected during the course of discreet enquiry

have to be furnished to the petitioner. Here again, admittedly even though discreet enquiry was conducted by the Revenue Divisional Officer, the

copies of the Statements recorded and the copies of the documents collected during the course of such enquiry were not made available to the

petitioner. Hence the procedure adopted by the Revenue Divisional Officer is contrary to the above mentioned decision.

Similar view has been taken by MISHRA , J., as His Lordship then was in a decision reported in Selvaraju, D. v. Bharat Heavy Electricals

Limited, etc., 1991 W.L.R.68. His Lordship had concluded that the Revenue Divisional Officer ought to have forwarded the statements of such

individuals who testified that petitioners did not belong to Scheduled Tribe Community, to the petitioners. In the light of the principles laid down in

these decisions, in the absence of following the procedure as stated therein, the ultimate order passed by the first respondent relying on the report

of the Revenue Divisional Officer is liable to be set aside.

Finally the learned counsel for the petitioner has raised a contention that even though he was appointed in the year 1981 by the third

respondent on the basis of the community certificate dated January 9, 1980 issued by the Tahsildar, Avinashi Taluk and he was subsequently

promoted as Electrical Fitter-Grade I, in the absence of any complaint by the employer, it is not open to the District Collector or the Revenue

Divisional Officer to conduct an enquiry merely on the basis of the Complaint made by one of his co-workers by name Vellaiyan, who, according

to the petitioner, is on inimical terms with him. In other words, it is to be considered whether the respondents 1 and 2 are justified in making an

enquiry merely on the basis of a complaint made by a third party, who is admittedly not an employer. As a matter of fact, the employer namely

respondents 3 and 4 have no grievance with regard to the community status of the petitioner. For the sake of repetition, it is clear that they did not

send any request either to the District Collector or to the Revenue Divisional Officer for verification of the community status of the petitioner. In this

regard, it is worthwhile to refer a Division Bench decision of this Court reported in Sakthi Devi, S.P. v. Collector of Salem etc., 98 Law Weekly -

In this decision, after analysing the various aspects, Their Lordships have issued seven directions, out of which directions 3, 5 and 7 are

relevant for this case and the same are extracted as follows:-

In no disciplinary proceedings, their genuineness or correctness of their contents can be gone into. It is open to thee department or employer or

organisation, to ask the issuing authority or District Collector, as the case may be, to verify whether the certificate as issued could be still valid, on

materials which have since come to their knowledge. They can appear in the verification enquiry and place the materials.

x x x

Appointing authorities have the right to verify the genuineness of the certificates by approaching the District Magistrate-Collector of the District

or such other constituted authority and once the report is received that the certificate is genuine, thereafter the certificate holder cannot be further

harassed to prove his caste/community in any other manner.

x x x

In view of what is stated in Chapter 14 of Brochure on Reservation for Scheduled Castes and Scheduled Tribes, in services, 6th edition (1982),

the instructions issued by the Central Government from time to time relating to Scheduled Castes and Scheduled Tribes, pertaining to issue of caste

certificates are binding upon public sector undertakings, statutory and semi-Government bodies and voluntary agencies receiving grant-in-aid from

the Central Government, as provided therein.

The above mentioned conclusion of the Division Bench makes it clear that it is open to the Issuing Authority or the District Collector as the case

may be, to verify whether the certificate as issued could be still valid. Likewise, the appointing authorities have the right to verify the genuiness of

the certificate by approaching the District Collector or such other constituted authority. Except the above mentioned categories of persons, it is not

open to the Authorities to verify the community status of the person concerned merely on the basis of a complaint received from third parties. I

have already observed that in the case on hand, the employer, viz., respondents 3 and 4 did not send any request for verification of the community

certificate obtained by the petitioner. In such circumstance, the verification and the enquiry initiated by the respondents 1 and 2 merely on the basis

of a complaint made by one Vellaiyan, a co-worker of the petitioner cannot be sustained. As a matter of fact, in a dispute between the holder of

the community certificate and his employer, a Division Bench of this Court in R. Nirmala v. Reserve Bank of India and Ors. (W.P. No. 10292 of

1989 dated June 18, 1996) has dismissed the plea of Scheduled Castes Uplift Union for being impleaded as parities to the said proceedings.

When the Scheduled Caste Association or Union which are connected with the uplift of the Scheduled Caste people themselves are not permitted

to participate in the proceedings, it is not open to the constituted authorities to enquire into the genuineness or status of community certificate issued

already merely on the basis of complaints from third parties. Accordingly, the entire proceedings initiated by the respondents 1 and 2 merely on the

basis of the complaint of one Vellaiyan, a co-worker of the petitioner, without any request or requisition from the employer or genuine doubt in the

minds of the constituted authorities are liable to be quashed. In view of my conclusion on the first three questions, the matter has to be remitted

back to the first respondent for fresh enquiry and in view of my conclusion on the last question referred to above, I am of the view that there is no

need for any fresh verification. Accordingly, the writ petition is allowed and the impugned order of the first respondent dated February 19, 1991 is

quashed. However, there shall be no order as to costs.